RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 June 2005
      DOCKET NUMBER:  AR20040007823


      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             |
|     |Ms. Betty A. Snow                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Mr. LaVerne M. Douglas            |     |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 under other then honorable
conditions (UOTHC) discharge be upgraded to a general, under honorable
conditions discharge (GD).

2.  The applicant states, in effect, that he was only 17 when he joined the
Army. He claims he was running away from home and saw the service as a way
out. He also states that his youth and immaturity were the primary causes
for his discharge.  He indicates that he is now 32 years old, and he often
wonders what his life would have been like had he stayed in the service.
He further indicates that in the last couple of years, he has tried to come
back into the service.  However, his prior service and discharge comes up
and he is not accepted for enlistment.  He states that he is now at an age
where he understands the importance of service to his country, and the
chance to serve.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 17 September 1990.  The application submitted in this case
is dated 2 October 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 records show that he enlisted in the Army and entered
active duty on 31 May 1989.  He completed basic training at Fort Dix, New
Jersey and advanced individual training (AIT) at Fort Belvoir, Virginia.
Upon completion of AIT, he was awarded military occupation specialty (MOS)
52D10 (Power Generation Equipment Repairer), and was assigned to Fort
Benning, Georgia.

4.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.  The record does
reveal a disciplinary history that includes four periods of time lost,
which includes two periods of his being absent without leave (AWOL) and two
periods of confinement.
5.  On 22 November 1989, the applicant departed AWOL from his unit at
Fort Benning.  He remained away for 9 days until returning to military
control at Fort Benning on 30 November 1989.

6.  On 4 December 1989, the applicant departed AWOL from his unit at
Fort Benning.  He remained away for 18 days until returning to military
control on
21 December 1989.

7.  On 22 December 1989, the applicant was placed in confinement for 24
days at the Post Confinement Facility at Fort Benning.  He was released on
15 January 1990.

8.  On 16 January 1990, the applicant departed AWOL from his unit at
Fort Benning.  He remained away for 1 day until returning to military
control on 16 January 1990.

9.  On 17 January 1990, the applicant was placed in confinement for 37 days
at the Post Confinement Facility at Fort Benning.  He was released on 22
February 1990.

10.  On 19 July 1990, a Charge Sheet (DD Form 458) was prepared preferring
a court-martial charge against the applicant for violating Article 86 of
the Uniform Code of Military Justice (UCMJ) for being AWOL from on or about
26 February through on or about 16 July 1990.

11.  On 20 July 1990, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial.  He was
also advised of the maximum permissible punishment authorized under the
UCMJ, the possible affects of an UOTHC discharge and of the procedures and
rights that were available to him.  Subsequent to receiving this legal
counsel, the applicant voluntarily requested discharge for the good of the
service, in lieu of trial by court-martial.

12.  In his request for discharge, the applicant indicated that he
understood that by requesting discharge, he was admitting guilt to the
charge against him, or of a lesser included offense, that also authorized
the imposition of a bad conduct or dishonorable discharge.  He further
acknowledged he understood that if his discharge request was approved, he
could be deprived of many or all Army benefits, that he could be ineligible
for many or all benefits administered by the Department of Veterans Affairs
(VA), and that he could be deprived of his rights and benefits as a veteran
under both Federal and State law.

13.  On 30 July 1990, the separation authority approved the applicant’s
request for discharge and directed that he receive an UOTHC discharge, and
that he be reduced to the lowest enlisted grade.  On 17 September 1990, the
applicant was discharged accordingly.

14.  The DD Form 214 he was issued confirms he completed 7 months and
29 days of creditable active military service, and that he accrued 299 days
lost due to AWOL and confinement.

15.  There is no indication that the applicant applied to the Army
Discharge Review Board for an upgrade of his discharge within its 15-year
statute of limitations.

16.  Army Regulation 635-200 sets forth the basic authority for the
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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his youth and immaturity impaired his
ability to serve was carefully considered.  However, the evidence of record
confirms he successfully finished training, which indicates he had the
ability to successfully serve in the Army.  Therefore, this factor is not
sufficiently mitigating to warrant an upgrade of his discharge at this late
date.

2.  The evidence of record also confirms that the applicant was charged
with the commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, the applicant voluntarily
requested discharge from the Army in lieu of trial by court-martial.  All
requirements of law and regulation were met, the rights of the applicant
were fully protected throughout the separation process and his discharge
accurately reflects his overall record of short and undistinguished
service.

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

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 17 September 1990.  Therefore, the
time for him to file a request for correction of any error or injustice
expired on
16 September 1993.  However, he failed to 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

___MKP_  ___PHM _  ___LMD_  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.




                                  _____Margaret K. Patterson____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040007823                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-06-21                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1990/09/17                              |
|DISCHARGE AUTHORITY     |AR 635-200, Ch 10. . . . .              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0200.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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