RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          22 July 2004
      DOCKET NUMBER:  AR2004100274


      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. Edmund P. Mercanti            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Walter T. Morrison            |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Eric Andersen                 |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 (UOTHC) be upgraded to fully honorable or, in the alternative, a
general discharge.

2.  The applicant states that his overall service record was not given
proper consideration.

3.  The applicant provides a copy of his separation document.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 6 August 1986.  The application submitted in this case is dated
27 October 2003.

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.  The applicant’s military records show that he enlisted in the Regular
Army on 2 August 1983.  He was awarded the military occupational specialty
of infantryman and was promoted to pay grade E-4.

4.  On 30 August 1984, the applicant departed Absent Without Leave (AWOL)
and remained absent until his return to duty on 8 September 1984.

5.  On 29 April 1986, the applicant departed AWOL and remained absent until
his return to duty on 16 May 1986.

6.  On 13 June 1986, the applicant departed AWOL and remained absent until
his return to duty on 17 June 1986.





7.  On 17 June 1986, the applicant was placed in pre-trial confinement.

8.  On 19 June 1986, the applicant was notified that he was being retained
on active duty beyond the expiration of his term of service (ETS) of 10
June 1986 because trial by court-martial had been initiated against him for
two periods of AWOL.

9.  On 8 July 1986, court-martial charges were preferred against the
applicant for two specifications of AWOL and one specification of failing
to go at the time prescribed to his appointed place of duty.

10.  On 15 July 1986, the applicant requested discharge in lieu of trial by
court-martial for the good of the service.  In that request he asked that
he be given a General Discharge instead of a discharge UOTHC based on his
previous outstanding service.

11.  The applicant’s chain of command all recommended approval of the
applicant’s request for discharge, but recommended that he be given a
discharge UOTHC.

12.  The appropriate authority approved the applicant’s request and
directed that he be given a discharge UOTHC.

13.  Accordingly, on 6 August 1986, the applicant was given a discharge
UOTHC.  His separation document shows that he had a total of 2 years, 11
months and 4 days of creditable service.  His significant awards include
the Army Achievement Medal (AAM) with oak leaf cluster.

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 under
other than honorable conditions is normally considered appropriate.





DISCUSSION AND CONCLUSIONS:

1.  Three periods of AWOL and one specification of failing to go at the
time prescribed to his appointed place of duty constituted serious
misconduct and warranted a discharge UOTHC.

2.  While the applicant was awarded two AAMs, that is not sufficiently
mitigating to upgrade a discharge UOTHC based on such serious misconduct.

3.  The applicant asked for a general discharge when he requested a
discharge in lieu of trial by court-martial, citing his previous
outstanding service as the basis for that request.  It would appear that
his command accepted his request for discharge in lieu of trial by court-
martial because of his previous service record.  Otherwise, he would have
been tried by court-martial and could have been sentenced to confinement at
hard labor and a punitive discharge.  However, it is apparent that his
command determined that his service was not so meritorious as to warrant
issuing him a general discharge based on the severity and repetitiveness of
his offenses.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 August 1986; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 5 August 1989.  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 RELIEF

________  ________  ________  GRANT FORMAL HEARING

___wtm__  ____bje _  ___ena__  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.




            _________Walter T. Morrison_______
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR2004100274                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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