RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          11 January 2005
      DOCKET NUMBER:  AR2004105354


      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. Rosa M. Chandler              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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 DD Form 214 (Certificate of
Release or Discharge from Active Duty) be corrected to show that the under
other than honorable conditions (UOTHC) discharge he received on 23
November 1994 is upgraded to a fully honorable discharge.

2.  The applicant states no contentions.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 23 November 1994.  The application submitted in this case is
dated 12 January 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 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.  Prior to the period of service under review the applicant served
honorably in the Regular Army (RA) from 17 February 1987 to 1 July 1990
until he was separated for immediate reenlistment.

4.  On 2 July 1990, the applicant reenlisted in the RA for 4 years, his
previous military occupational specialty (MOS) 92A (Automated Logistics
Specialist), the overseas area enlistment option (Europe) and in pay grade
E-4.

5.  On 15 February 1992, the applicant was assigned to Germany.  His
(DEROS) date eligible for return from overseas was 9 March 1995 and his
(ETS) expiration of term of service date was 1 April 1995.  Apparently, he
extended his service obligation to meet the time requirement for an
overseas assignment.  The extension contract is not contained in the
available record.





6.  On 4 September 1994, court-martial charges were preferred against the
applicant for stealing four bottles of perfume, a car title, and an
airplane ticket
(15 September 1994), six specifications of committing an assault upon his
wife, wrongfully communicating a threat to kill his wife, and for breaking
restriction
(3 July and 18 September 1994).

7.  On 9 November 1994, the applicant consulted with legal counsel and
requested discharge under the provisions of chapter 10, Army Regulation
635-200 in lieu of trial by court-martial.  He was advised that he could
receive a UOTHC discharge.  He authenticated a statement with his signature
acknowledging that he understood the ramifications and effects of receiving
a UOTHC discharge.  He declined to submit a statement in his own behalf.

8.  On 10 November 1994, the approval authority approved the applicant's
request for discharge and directed that he be separated with a UOTHC
discharge in pay grade E-1, the highest pay grade that he attained was
sergeant, pay grade E-5.

9.  The applicant's DD Form 214 shows that he was separated on 23 November
1994 under the provisions of chapter 10, Army Regulation 635-200 with a
UOTHC discharge in-lieu of trial by court-martial.  He had completed 4
years,
4 months and 22 days of his current enlistment and he had completed a total
of
7 years, 9 months and 7 days of active military service.

10.  On 9 June 1999, the Army Discharge Review Board (ADRB) denied the
applicant’s request for an upgrade of his discharge.

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
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 UOTHC discharge
is considered appropriate.

12.  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 Army Board for Correction of
Military Records (ABCMR) should commence on the date of final action by the
ADRB.  In complying with this decision, the ABCMR 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 voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, to avoid trial by court-martial
was administratively correct and in conformance with applicable
regulations.

2.  The applicant committed a number of serious offenses.  His conduct was
inconsistent with the Army’s standards for acceptable personal conduct and
his overall quality of service does not warrant an upgrade of his
discharge.

3.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 9 June 1999.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to this Board expired on 8 June 2002.  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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__lds___  __jtm___  __cak___  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.



                                  Linda D. Simmons
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004105354                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050111                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |19941123                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 10                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.7000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]