RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 July 2005
      DOCKET NUMBER:  AR20040008422


      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. Prevolia Harper               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Eric N. Anderson              |     |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 that his discharge under other than honorable
conditions be upgraded to general under honorable conditions.

2.  The applicant states that upon his return from Operation Desert Storm,
he found out that his wife was leaving him.  He further states that he made
numerous attempts to obtain help from his chain of command and never
received the help he needed.

3.  The applicant explains that his wife took both of their children and
had cleaned out his checking account.  He further explains that he wanted
to fix his marriage and thought if he sought counseling that they could get
back together.

4.  The applicant continues that he was preparing for the E-5 promotion
board and became extremely depressed and used cocaine and alcohol.  He
states that he turned himself in after getting his system clean of drugs.

5.  The applicant provides:

      a.  A copy of his DD Form 214 (Certificate of Release or Discharge
from Active Duty).

      b.  A DA Form 4700 (Medical Record-Supplemental Medical Data, dated
19 July 1983.

      c.  An Inpatient Treatment Record Cover Sheet.

      d.  A Narrative Summary, dated 2 May 1990.

      e.  Two Screening Notes of Acute Medical Care

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 6 March 1992.  The application submitted in this case is dated
6 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 enlisted in the Regular Army on 12 May 1988 for a period
of
4 years.  He completed basic and advanced individual training and was
awarded the military occupational specialty 11B1P (Infantryman).  The
applicant was separated from active duty under other than honorable
conditions on 6 March 1992.

4.  The specific facts and circumstances leading to the applicant's
discharge are not contained in the available records.

5.  The applicant's DA Form 2-1 (Personnel Qualification Record – Part II)
shows he served in Saudi Arabia from 21 August 1990 to 3 April 1991.

6.  The applicant's records contain a DA Form 4187 (Personnel Action).
This form shows that the applicant was listed as being absent without leave
(AWOL) with an effective date of 27 September 1991.

7.  On 29 October 1991, the applicant was dropped from the rolls for
desertion by his chain of command at Fort Bragg, North Carolina.

8.  On 10 February 1992, the applicant surrendered to military authorities
at Fort Bragg.

9.  The applicant's records contains an undated Admission of AWOL for
Administrative Purposes in which he acknowledged that the government had
not received the necessary documentation and records to obtain a conviction
by court-martial.  The applicant acknowledged that he would be given a
discharge under other than honorable conditions and his defense counsel had
explained to his complete satisfaction all the legal and social
ramifications of a chapter 10 discharge.




10.  On 12 February 1992, the applicant signed a statement in which he
stated that he did not desire a separation medical examination.

11.  The applicant's service personnel records do not contain the complete
facts and circumstances surrounding his separation process.  However, his
DD Form 214 shows that he was discharged on 6 March 1992 under the
provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations)
for the good of the service in lieu of court-martial.  He completed a total
of 3 years, 5 months, and 12 days of creditable active service with 136
days of lost time due to AWOL.

12.  On 8 June 2001, the Army Discharge Review Board (ADRB) denied the
applicant's request for an upgrade of his discharge.

13.  The applicant submitted medical documents which show that he sustained
an ankle injury and underwent a surgical procedure at Womack Army Medical
Center on 2 May 1990.

14.  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 is authorized, a discharge UOTHC
is normally considered appropriate.

15.  Army Regulation 635-200, paragraph 3-7, 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.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (Army Regulation 15-185,
paragraph 2-8), effectively shortens that filing period, has determined
that the 3 year limit on filing to the ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the ABCMR has
adopted the broader policy of calculating the 3-year time limit from the
date of exhaustion in any case where a lower level administrative remedy is
utilized.
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.

2.  The applicant was advised of the effects of a discharge under other
than honorable conditions and the legal and social ramifications of such
characterization.

3.  The applicant's record of service shows he was AWOL for 136 days.  As a
result, his record of service was not satisfactory and did not meet the
standards of acceptable conduct and performance of duty for Army personnel.
 Therefore, the applicant's record of service is insufficiently meritorious
to warrant an upgrade to general.

4.  The medical documents dated in May 1990 provided by the applicant
indicate that he was diagnosed and had surgery for an ankle injury.
However, there is no evidence that his injury contributed to his
indiscipline and AWOL.

5.  The applicant stated that he made numerous attempts to seek assistance
from his chain of command without success.  However, there is insufficient
evidence to substantiate the applicant's claim in the available records and
the applicant did not provide additional evidence.

6.  The ABCMR does not correct records solely for the purpose of
establishing eligibility for benefits.  In addition, granting veteran's
benefits is not within the purview of the ABCMR and any questions regarding
eligibility for treatment and other benefits should be addressed to the
DVA.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 June 2001, the date of the ADRB
review; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 7 June 2004.  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

__mhm___  __ena___  __cak___  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                 |AR20040008422                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050707                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19920306                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chap 10                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.7000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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