RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           3 August 2004
      DOCKET NUMBER:  AR2004100961


      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. Fred Eichorn                  |     |Chairperson          |
|     |Ms. Gail J. Wire                  |     |Member               |
|     |Mr. John T. Meixell               |     |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 to an honorable discharge (HD).


2.  The applicant states, in effect, that his defense counsel told him that
if he requested discharge in lieu of court-martial, his discharge would be
upgraded to an HD within a couple of years.  He states that had he elected
court-martial, he could have stayed in the Army and received an HD.  He
claims to want to join the National Guard in order to serve his country.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 2 July 1986.  The application submitted in this case is
dated 14 November 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 record shows that he enlisted in the Regular Army and
entered active duty on 19 October 1982.  He was trained in, awarded, and
served in military occupational specialty (MOS) 19D (Cavalry Scout) and the
highest he attained while serving on active duty was specialist/E-4 (SPC/E-
4).

4.  The applicant’s record documents no acts of valor or significant
achievement and is void of a disciplinary history prior to the offense that
resulted in his discharge.

5.  A court-martial charge was preferred against the applicant for
violation of Article 86 of the Uniform Code of Military Justice (UCMJ) by
being absent without leave (AWOL) from on or about 8 April through on or
about 21 May 1986.
6.  On 4 June 1986, the applicant consulted with legal counsel and he was
advised of the basis for the contemplated trial by court-martial and the
maximum permissible punishment authorized under the UCMJ, the possible
effects of an UOTHC discharge, and of the procedures and rights available
to him.  Subsequent to this counseling, the applicant voluntarily requested
discharge, for the good of the service, in lieu of trial by court-martial.


7.  In his request for discharge, the applicant acknowledged that he was
making the request of his own free will and that he had no desire to
perform further military service.  He also acknowledged that he was guilty
of the charge against him or of a lesser included offense therein contained
which also authorized the imposition of a bad conduct or dishonorable
discharge.  He also indicated that he understood that by requesting
discharge, he would 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.  This request also
confirms that the applicant elected not to submit a statement in his own
behalf.

8.  On 25 June 1986, the separation authority approved the applicant’s
request for discharge and directed that he receive an UOTHC discharge and
that he be reduced to the lowest enlisted grade.  On 2 July 1986, the
applicant was discharged accordingly.

9.  The DD Form 214 the applicant was issued on the date of his discharge,
2 July 1986, confirms that he completed a total of 3 years and 7 months of
creditable active military service, and that he accrued 44 days of time
lost due to AWOL.  It also shows that during his active duty tenure, he
earned the Army Service Ribbon, Overseas Service Ribbon, Army Good Conduct
Medal, and Expert Qualification Badge with Rifle Bar.

10.  The applicant’s record contains no indication that he applied to the
Army Discharge Review Board (ADRB) for an upgrade to his discharge within
its
15 year statute of limitations.
11.  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 UOTHC conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that his counsel informed him his discharge would
be upgraded within a couple of years was carefully considered.  However,
the Army does not have, nor has it ever had, a policy to automatically
upgrade discharges. Each case is decided on its own merits when an
applicant petitions the ADRB or this Board requesting a change in
discharge.  A change to the discharge may be warranted if the Board
determines that the discharge was improper or inequitable.

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.  In
doing so, he admitted guilt to an offense under the UCMJ that authorized a
punitive discharge.  Lacking evidence to the contrary, it is concluded that
all requirements of law and regulation were met and that the rights of the
applicant were fully protected throughout the separation process.

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.  The record shows that the applicant should have discovered the alleged
error or injustice now under consideration on 2 July 1986, the date of his
discharge.  Therefore, the time for him to file a request for correction of
any error or injustice expired on 1 July 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 file in this case.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_     FE       __GJW  _  __JTM __  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.




               __Fred Eichorn__
                CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100961                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/08/DD                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1986/07/02                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |In lieu of CM                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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