RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           26 August 2004
      DOCKET NUMBER:  AR2004100467


      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             |
|     |Mrs. Carolyn Wade                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Ms. Margaret V. Thompson          |     |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
discharge (UOTHC) be upgraded to a general, under honorable conditions
discharge (GD).

2.  The applicant states that he was having family problems at the time the
Army said he was on excess leave.  He states he would like the Army to
consider the circumstances at that time.

3.  The applicant provides no documents in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 6 May 1986.  The application submitted in this case is
dated 3 March 2003 and was received in this office on 24 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 personnel records show he enlisted in the
Regular Army on 5 December 1984 for a period of 3 years.  Following
completion of all required military training, the applicant was awarded
military occupational specialty (MOS) 13B, Cannon Crewmember and was
assigned to Germany as his first permanent duty assignment.

4. The applicant arrived in Germany on or about 18 April 1985 with duty as
a cannoneer.  On 19 July 1985, the applicant departed his unit absent
without leave (AWOL).  On 19 September 1985, the applicant was apprehended
by civil authorities and confined to the Los Angeles County Jail until 28
October 1985 when he was returned to military control at Fort Ord,
California.

5.  On 17 August 1985, court-martial charges were preferred against the
applicant for being AWOL from 19 July 1985 to 19 September 1985.

6.  On 8 November 1985, after consulting with legal counsel, the applicant
voluntarily requested discharge under the provisions of chapter 10, Army
Regulation (AR) 635-200 for the good of the service in lieu of trial by
court-martial.  The applicant was advised of the effects of a UOTHC and
that he might be deprived of many or all Army and Veterans Administration
benefits.  The applicant elected not to submit a statement in his own
behalf.

7.  On 22 April 1986, the appropriate authority approved the applicant’s
request for discharge under the provisions of chapter 10, AR 635-200.  He
directed that the applicant be furnished a UOTHC Certificate and be reduced
to the lowest grade.

8.  Accordingly, on 6 May 1986, the applicant was discharged with a UOTHC.
He was credited with 1 year, 1 month, and 21 days of active military
service and 100 days of lost time.

9.  AR 635-200, then in effect, 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
UOTHC was normally considered appropriate.

10.  There is no indication that the applicant applied to the Army
Discharge Review Board for an upgrade of his discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant indicates that he was experiencing family problems when
he departed his unit AWOL.  Even if true, the applicant had other avenues
to seek assistance other than choosing to go AWOL.  There is no indication
that the applicant ever sough assistance from his command.

2.  The evidence of record shows the applicant elected not to make a
statement in his own behalf and explain why he had gone AWOL.  This would
have been an appropriate time to seek leniency and explain his misconduct.


3.  After consulting with defense counsel, the applicant voluntarily, and
in writing, requested separation from the Army in lieu of trial by court-
martial.  In doing so, the applicant admitted guilt to the stipulated
offenses under the UCMJ.  The
record indicates that all requirements of law and regulation were met and
the rights of the applicant were fully protected throughout the separation
process.  Additionally, there is no evidence of impropriety or inequity.

4.  The applicant’s 100 days of AWOL adversely affected the quality of his
service, brought discredit on the Army, and was prejudicial to good order
and discipline.  This incident of misconduct clearly diminished the quality
of the applicant’s service below that meriting a general or fully honorable
discharge.

5.  The applicant's discharge was appropriate because the quality of his
service was not consistent with the Army's standards for acceptable
personal conduct and performance of duty by military personnel.  The
applicant provided no independent, corroborating evidence demonstrating
that either the command's action was erroneous or that his service
mitigated his misconduct or poor duty performance.

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

__rjw___  __le____  __mvt___  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.



                                  Raymond J. Wagner
            ______________________
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004100467                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040829                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19860506                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chap 10                     |
|DISCHARGE REASON        |A70.00                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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