RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          30 August 2005
      DOCKET NUMBER:  AR20040008273


      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. Rosa M. Chandler              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Paul M. Smith                 |     |Chairperson          |
|     |Ms. Yolanda Maldonado             |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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 that his under other than honorable conditions
(UOTHC) discharge be upgraded to a fully honorable discharge.

2.  The applicant states, in effect, that at the time of separation a Judge
Advocate General officer advised him he could receive an honorable
discharge 1 year after he had been separated.  He also states that he is
willing to do whatever it takes to get his discharge upgraded, including
reenlisting to fight in the war on terrorism.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 26 March 1987.  The application submitted in this case is date
stamped 6 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 limitation 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.  On 16 September 1985, the applicant enlisted in the Delayed Entry
Program (DEP).  On 24 October 1985, he was discharged from the DEP and he
enlisted in the Regular Army for 4 years and training in military
occupational specialty (MOS) 31K (Combat Signaler) and an enlistment bonus
in the amount of $4,000. The applicant completed the training requirements
and he was awarded MOS 31K.  On 17 March 1986, he was assigned to Fort
Carson, Colorado.

4.  On 21 October 1986, nonjudicial punishment (NJP) was imposed against
the applicant under the provisions of Article 15, Uniform Code of Military
Justice (UCMJ) for failure to go to his appointed place of duty at the time
prescribed on 14 October 1986.  His punishment included a forfeiture of
$149.00 pay per month for 1 month (suspended), reduction from pay grade E-2
to pay grade E-1 and
14 days of extra duty and restriction.

5.  The applicant left his unit at Fort Carson in an absent without leave
(AWOL) status from 12 December 1986 to 5 February 1987 until civil
authorities at Cullman, Alabama apprehended him and returned him to
military authorities at the Personnel Control Facility (PCF), Fort Knox,
Kentucky.

6.  On 6 February 1987, the applicant declined a separation medical
examination.

7.  On 18 February 1987, court-martial charges were preferred against the
applicant for the above period of AWOL.

8.  On the same date, the applicant consulted with legal counsel and
requested discharge under the provisions of chapter 10, Army Regulation 635-
200 for the good of the service in lieu of court-martial.  He authenticated
a statement with his signature acknowledging he understood the
ramifications and effects of receiving a UOTHC discharge.  He also
acknowledged he understood that there would be no automatic upgrade or
automatic review of his discharge.  If he desired a review of his
discharge, he was required to submit a request to either the Army Discharge
Review Board, or the Army Board for Correction of Military Records, and the
act of consideration by either board did not imply the discharge would be
upgraded.  He declined to submit a statement in his own behalf.

9.  On 25 February 1987, both the applicant's unit commander and the
intermediate commanders recommended approval of the applicant's request
with a UOTHC discharge.

10.  On 27 February 1987, the approval authority approved the applicant's
request for discharge under the provisions of chapter 10 and directed that
he be reduced to the lowest enlisted grade and separated with a UOTHC
discharge.

11.  The applicant's DD Form 214 (Certificate of Release or Discharge from
Active Duty) shows he was administratively separated on 26 March 1987 under
the provisions of chapter 10, Army Regulation 635-200 with a UOTHC
discharge for the good of the service-in lieu of curt-martial.  He had
completed 1 year, 3 months and 10 days of active military service and he
had 55 days of lost time from 12 December 1986 to 4 February 1987.

12.  There is no evidence that the applicant ever applied to the Army
Discharge Review Board for review of his discharge under that board's 15-
year statute of limitation.

13.  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
submit a request for discharge for the good of the service in lieu of
trial by court-martial.  The request may be submitted at any time after
charges have been preferred and must include the individual’s admission of
guilt.  Although an honorable or general discharge was authorized, a UOTHC
discharge was considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  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.  There is no indication that the
request was made under coercion or duress.  The type of discharge directed
and the reasons for discharge were appropriate considering the facts of the
case.

2.  The applicant's statement that he was told his discharge would be
automatically upgraded 1 year after separation is not credible.  During the
separation process, the applicant acknowledged with his signature that he
understood there would be no automatic upgrade of his discharge.  He also
acknowledged that he understood a review of his discharge did not imply the
discharge would be upgraded.

3.  The applicant has established no basis for the upgrade of his
discharge.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 March 1987; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
25 March 1990.  However, 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

__pms___  __ym____  __lgh___  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.



                                  Paul M. Smith
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040008273                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050830                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |19870326                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 10                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.7100                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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