RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        4 August 2005
      DOCKET NUMBER:  AR20040010391


      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. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms. 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 discharge be upgraded to an
honorable discharge.

2.  The applicant states, in effect, that he was having some hardship in
his personal life and that he served in the Army to the best of his
abilities.  However, because of the issues that he was dealing with, he
went absent without leave (AWOL).  His spouse was hospitalized with a heart
condition, he was denied emergency leave for his spouse and he had two
children and there was no one to keep them.  He believed that he was needed
at home.

3.  The applicant provides no additional information.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged (error or
injustice) which occurred on 23 March 1993.  The application submitted in
this case is dated
24 November 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 that he enlisted in the Regular Army on
9 September 1988.  He completed the required training and was awarded
military occupational specialty 13B10 (Cannon Crew Member).  On 31 August
1992, the applicant was reported for being absent without leave (AWOL).  He
was returned to military control on 19 January 1993.

4.  On 22 January 1993, court-martial charges were preferred against the
applicant for being AWOL from 31 August 1992 to 18 January 1993.

5.  On 23 January 1993, the applicant was found physically fit for
retention.

6.  On 25 January 1993, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation action, the effects of
a discharge Under Other Than Honorable Conditions (UOTHC) and of the rights
available to him.  The applicant voluntarily requested discharge for the
good of the service, in lieu of trial by court-martial.  In his request for
discharge, he acknowledged that he was guilty of the charge against him or
of a lesser included offense therein contained which also authorizes the
imposition of a bad conduct or dishonorable discharge.  He further stated
that under no circumstances did he desire further rehabilitation, for he
had no desire to perform further military service.  He also stated his
understanding 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.  He further indicated that he understood that
he could encounter substantial prejudice in civilian life by reason of an
UOTHC discharge.  There was no mention of personal problems during his
interviewing process.

7.  On 5 March 1993, the separation authority approved the applicant’s
request for discharge and directed that he receive a Discharge Certificate
Under Other Than Honorable Conditions.  On 23 March 1993, the applicant was
discharged accordingly.  The separation document (DD Form 214) he was
issued confirms he completed 4 years, 1 month and 26 days of creditable
active military service and accrued 141 days of time lost due to AWOL.

8.  On 11 May 1998, the Army Discharge Review Board (ADRB) determined that
the applicant’s discharge was proper and equitable and it voted to deny the
applicant’s request for an upgrade of his discharge.

9.  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.  However, at the time of the applicant's separation the
regulation provided for the issuance of a UOTHC discharge.

10.  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 Board 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 contentions that he was having some hardships in his
personal life; that his wife was ill; that he had no one to care for his
children and that he was denied emergency leave was carefully considered
and found to have insufficient merit in this case.  There is no evidence
nor has the applicant provided any evidence to show that he asked for help
at any time before deciding to go AWOL.  Therefore, given the circumstances
in this case, there is insufficient evidence to support his request.

2.  The evidence of record 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 exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 11 May 1998.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 10 May 2001.  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 file in this case.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JEA __  __RTD __  __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.


                                     __James E. Anderholm__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010391                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050804                                |
|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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