RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         7 July 2005
      DOCKET NUMBER:  AR20040007722


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. David S. Griffin              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Eric N. Andersen              |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect that his discharge under other than
honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he believes the record to be
unjust because he was enlisted under false pretense because he was trying
to enlist as a reservist on active duty not full time active duty.

3.  The applicant provides no documentation or evidence in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 16 December 1988, the date of his discharge.  The application
submitted in this case is dated 14 September 2004.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's military records show that on 15 September 1987 he
enlisted in the Army Reserve in the Delayed Entry/Enlistment Program (DEP).

On 21 September 1987, he was discharged from the DEP and enlisted in the
Regular Component of the Army for a period of 4 years.  The highest grade
held by the applicant was private/pay grade E-2.

4.  The applicant accepted nonjudicial punishment (NJP) under Article 15,
Uniform Code of Military Justice (UCMJ), on 3 May 1988 for three
specifications of failure to go to appointed place of duty.

5.  The applicant's records show that he was absent without leave (AWOL)
from 14 June 1988 and dropped from the rolls on 14 July 1988.  Records show
the applicant was apprehended and confined by civil authorities on 29
November 1988 and returned to military control on 1 December 1988.  On 1
December 1988, the applicant was confined by military authorities.

6.  On 2 December 1988, court-martial charges were preferred against the
applicant for AWOL during the period from 14 June 1988 to 29 November 1988.
 On 8 December 1988, the charges were referred to a special court-martial
empowered to adjudge a bad conduct discharge.

7.  On 6 December 1988, the applicant voluntarily requested discharge for
the good of the service.  He acknowledged that he was making the request of
his own free will and acknowledged that he was guilty of the offense with
which he was charged.  He further acknowledged that he was afforded the
opportunity to speak with counsel prior to making this request.  In his
request, the applicant acknowledged that he was advised he may be furnished
an Under Other Than Honorable Conditions Discharge Certificate; that he
would be deprived of many or all Army benefits; that he may be ineligible
for many or all Veterans Administration benefits; and that he may expect to
encounter substantial prejudice in civilian life because of an under other
than honorable conditions discharge.

8.  On 9 December 1988, the appropriate authority approved the applicant's
request for discharge for the good of the service, directed that the
applicant be reduced to private/pay grade E-1, and that he be furnished a
Discharge Certificate Under Other Than Honorable Conditions.

9.  On 12 December 1988, the applicant was released from confinement by
military authorities.

10.  On 13 December 1988, the applicant was given a mental status
evaluation  by a medical doctor.  The examiner found that the applicant met
the physical retention standards prescribed in Army Regulation 40-501
(Standards of Medical Fitness).  The examiner further determined that the
applicant was mentally responsible, able to distinguish right from wrong,
able to adhere to the right, and had the mental capacity to understand and
participate in proceedings.

11.  On 16 December 1988, the applicant was discharged under the provisions
of Chapter 10 of Army Regulation 635-200, due to conduct triable by court
martial.
He had completed 8 months and 28 days of active service and had 176 days of
time lost.

12.  There is no indication that the applicant applied to the Army
Discharge Review Board (ADRB) for an upgrade of his discharge within the
ADRB's 15-year statue of limitations.


13.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations) sets forth the basic authority for the administrative
separation of enlisted personnel.  Chapter 10 of that regulation provides,
in pertinent part, that a member who has committed an offense or offenses
for which the authorized punishment includes a punitive discharge may at
any time after the charges have been preferred, submit a request for
discharge for the good of the service in lieu of trial by court-martial.  A
discharge under other than honorable conditions is normally considered
appropriate.

14.  Army Regulation 635-200 provides that an honorable discharge is a
separation with honor and entitles the recipient to benefits provided by
law.  The honorable characterization is appropriate when the quality of the
member’s service generally has met the standards of acceptable conduct and
performance of duty for Army personnel (emphasis added), or is otherwise so
meritorious that any other characterization would be clearly inappropriate.
 Whenever there is doubt, it is to be resolved in favor of the individual.

15.  Army Regulation 635-200 provides that a general discharge is a
separation from the Army under honorable conditions.  When authorized, it
is issued to a soldier whose military record is satisfactory but not
sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the soldier’s separation specifically allows such
characterization.

16.  Under the provisions of The Manual for Courts-Martial, United States,
1984 edition, the maximum punishment that the applicant could have received
for his offenses is a bad conduct  discharge, 6 months confinement,
forfeiture of two-thirds pay and allowances for 6 months and reduction to
the lowest enlisted grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable
conditions should be upgraded to an honorable discharge.

2.  The applicant contends that the record is unjust because he was
enlisted under false pretense because he was trying to enlist as a
reservist on active duty not full time active duty.

3.  There is no evidence that the applicant did not know that he was being
discharged from the DEP and enlisting for a period of 4 years active duty.


4.  The applicant voluntarily requested discharge, admitted his guilt, and
acknowledged that he could receive an under other than honorable conditions
discharge.  If he had gone to court-martial he could have received a bad
conduct discharge, 6 months confinement, forfeiture of two-thirds pay and
allowances for 6 months and reduction to the lowest enlisted grade.
Therefore, the applicant's contention that his record is unjust is not
supported by the evidence.

5.  Rather than facing the consequences of a trial by court-martial the
applicant submitted a request for discharge for the good of the service, in
lieu of trial by court-martial.  Although he may now believe that he made
the wrong choice, he should not be allowed to change his mind at this late
date.

6.  The applicant’s voluntary request for separation under the provisions
of Army Regulation 635-200, Chapter 10, for the good of the service to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.

7.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.  The records contain no
indication of procedural or other errors that would tend to jeopardize his
rights.

8.  In order to justify correction of a military record the applicant must,
or it must otherwise satisfactorily appear, that the record is in error or
unjust.  The applicant has failed to submit evidence that would satisfy
that requirement.

9.  The applicant’s record of service shows 176 days of time lost.
Therefore his quality of service did not meet the standards of acceptable
conduct and performance of duty for Army personnel.  As a result, the
applicant is not entitled to an honorable discharge.

10.  In view of the applicant's length of time lost and the fact that he
had to be apprehended by civil authorities his record of service is not
satisfactory. Therefore, there is no basis to upgrade his discharge to a
general discharge.

11.  Based on all of the foregoing, there is insufficient basis to upgrade
the applicant's discharge.

12.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 December 1988; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
15 December 1971.  The applicant did not file within the 3-year statute of
limitations and has not provided a compelling explanation or evidence to
show that it would be in the interest of justice to excuse failure to
timely file in this case.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__MHM__  __CAK__  __ENA __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                        __Melvin H. Meyer___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040007722                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050707                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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