RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           2 August 2005
      DOCKET NUMBER:  AR20040009801


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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 than honorable
conditions (UOTHC) discharge be upgraded.

2.  The applicant states, in effect, that his discharge was inequitable
because it was based on an isolated incident.  He claims that in his 62
months of service he was the subject of no other adverse action.  He also
indicates that he was experiencing marital problems when he was notified of
his assignment to Germany and these problems impaired his ability to serve.


3.  The applicant provides a self-authored statement and copies of his
separation documents (DD Forms 214) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 14 March 1986.  The application submitted in this case is
dated
19 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 record shows he was initially inducted into the Army
and entered active duty on 19 January 1971.  He was trained in, awarded and
served in military occupational specialty (MOS) 11E (Armor Crewman).  He
served on active duty for 1 year, 11 months and 13 days until being
honorably separated on 22 January 1973, by reason of early overseas
returnee.
4.  The DD Form 214 the applicant was issued on 22 January 1973 confirms he
held the rank of specialist four (SP4) on the date of his separation, and
that he earned the National Defense Service Medal (NDSM) and Marksman
Qualification Badge with Rifle and Pistol Bars during this period of
service.

5.  On 30 December 1980, the applicant enlisted in the Regular Army and
entered active duty on the enlistment under review.  He was trained in,
awarded and served in MOS 19D (Cavalry Scout).

6.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows, in
Item 18 (Appointments and Reductions), that he attained the rank of
sergeant (SGT) on 4 October 1983, and that this is the highest rank he
attained while serving on active duty.  Item 18 also shows he was reduced
to the rank of SP4 on 8 March 1984 and to private/E-1 (PV1) on 18 March
1984.

7.  On 8 March 1984, the applicant accepted nonjudicial punishment (NJP)
under the provisions of Article 15 of the Uniform Code of Military Justice
(UCMJ), for violating a lawful general regulation by borrowing money from
trainees on two separate occasions.  His punishment for these offenses
included a reduction to SP4, forfeiture of $348.00 and 30 days extra duty.
The applicant did not appeal this punishment.

8.  On 27 March 1984, a bar to reenlistment was imposed on the applicant.
The unit commander cited the applicant’s NJP record, and four formal
counseling sessions with members of his chain of command, which were
conducted in the less than one month period between 21 February and 9 March
1984, for conduct and performance related infractions.

9.  On 14 August 1985, the applicant departed Fort Knox, Kentucky en route
to his new assignment in Germany.  On 30 August 1985, he was reported
absent without leave (AWOL) when he failed to report for movement to
Germany.

10.  On 3 February 1986, a Charge Sheet (DD Form 458) was prepared
preferring three court-martial charges against the applicant for violating
Article 86, Article 87 and Article 92 of the UCMJ.  Charge I was for
violating Article 86, by being AWOL from on or about 30 August 1985 through
on or about
9 September 1985.  Charge II was for violating Article 87, by missing
movement and Charge III was for violating Article 92, by disobeying a
lawful order.

11.  On 20 February 1986, the applicant consulted with legal counsel and
was advised of the basis for the contemplated trial by court-martial and
the maximum permissible punishment authorized under the UCMJ.  He was also
advised of the possible effects of an UOTHC discharge and of the procedures
and rights available to him.

12.  Subsequent to this counseling, he voluntarily requested discharge
under the provisions of chapter 10, Army Regulation 635-200, for the good
of the service, in lieu of trial by court-martial.  In his request for
discharge, the applicant indicated he understood the implications
associated with his discharge request and that by requesting discharge, he
was acknowledging that he was guilty of the charge against him, or of a
lesser included offense that authorized the imposition of a bad conduct or
dishonorable discharge.  He further stated that under no circumstances did
he desire rehabilitation because he had no desire to perform further
military service.

13.  On 7 March 1986, the separation authority approved the applicant’s
discharge request and directed that he be separated with an UOTHC discharge
and that he be reduced to the lowest enlisted grade.  On 14 March 1986, the
applicant was discharged accordingly.

14.  The DD Form 214 issued to the applicant on the date of his final
separation, 7 March 1986, confirms he completed a total of 7 years, 1 month
and 25 days of creditable active military service and that he had accrued
10 days of time lost due to AWOL.

15.  There is no indication in the record that the applicant applied to the

Army Discharge Review Board (ADRB) 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.
An UOTHC discharge is normally considered appropriate for members separated
under these provisions.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his discharge was based on an isolated
offense with no other adverse action in 62 months of service, and that he
was experiencing martial problems that impaired his ability to serve were
carefully considered.  However, these factors are not sufficiently
mitigating to warrant an upgrade of his discharge at this late date.

2.  The evidence of record confirms the applicant’s honorable service
between 1971 and 1973 is properly documented and recognized in the DD Form
214 he received for this period of active duty service.  The record also
shows that during the enlistment under review, he accepted NJP, was
formally counseled for conduct and performance issues on several occasions,
and was barred from reenlistment.  As a result, it is evident his record
included adverse actions that took place before he committed the offenses
that led to his discharge.

3.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition during the
enlistment under review.  It does show that he was charged with the
commission of offenses punishable under the UCMJ with a punitive discharge.
 After consulting with defense counsel, he voluntarily requested discharge
from the Army in lieu of trial by court-martial.  All requirements of law
and regulation were met and the rights of the applicant were fully
protected throughout the separation process.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 March 1986.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 13 March 1989. 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

___WDP_  ___RLD _  ___JRM_  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.




            ____William D. Powers____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040009801                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/08/02                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1986/03/14                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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