RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           15 February 2005
      DOCKET NUMBER:   AR2004106579


      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:

|     |Ms. Jennifer L. Prater            |     |Chairperson          |
|     |Mr. Thomas A. Pagan               |     |Member               |
|     |Mr. Kenneth W. Lapin              |     |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 he entered the Army with a
guaranteed contract for training in military occupational specialty (MOS)
31C (Single Channel Field Radio Operator) and assignment to a Ranger unit.
He claims that subsequent to completing MOS training he was sent to the
basic airborne course at Fort Benning, Georgia, with a tentative ultimate
assignment to the 2nd Ranger Battalion.  However, he was informed at Fort
Benning that he could not be assigned to the Ranger unit because he did not
hold the pay grade E-4.  He was then given an assignment to Fort Bragg,
North Carolina, but was diverted to
Fort Bliss, Texas.  As a result, he was not even assigned to an airborne
unit.  Upon his arrival at Fort Bliss, he found he had been erroneously
declared absent without leave (AWOL) by Fort Bragg.

3.  The applicant claims that after arriving at Fort Bliss, he received no
help from his chain of command in trying to resolve his breech of contract
issue.  He then went to the Inspector General (IG) for help and was
reprised against as a result of taking this action.  He claims the
harassment was so severe, it ultimately affected his marriage and he
thought of suicide, but went AWOL instead.  He claims he was hospitalized
for his psychiatric problems, but escaped from the hospital and began using
drugs.  When he broke the law, he was returned to
Fort Ord, California and was hurriedly discharged even after explaining his
psychiatric problems.

4.  The applicant provides a self-authored statement consisting of three
attachments is support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 17 November 1988.  The application submitted in this case
is dated 18 March 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.  The applicant’s record shows he enlisted in the Regular Army and
entered active duty on 21 February 1986.  The applicant’s enlistment
contract (DD Form 4) confirms, in the attached Record of Military
Processing/Armed Forces of the United States (DD Form 1966), that he
enlisted for training in MOS 31C with Option 9-4 (United States Army
Airborne Training), Option 9-17 (Cash Bonus) and Option 9-28 College Fund).


4.  A Statement of Enlistment/US Army Airborne Enlistment Option (DA Form
3286-4) included with the applicant’s enlistment contract also shows he was
given an initial assignment commitment to a Ranger unit.

5.  On 10 September 1986, while attending advanced individual training
(AIT) at Fort Gordon, Georgia, the applicant accepted nonjudicial
punishment (NJP) under the provisions of Article 15 of the Uniform Code of
Military Justice (UCMJ), for being AWOL from 7 August through 5 September
1986.  Upon completion of AIT, he was awarded MOS 31C and assigned to Fort
Benning to attend the basic airborne course.  On 29 September 1986, he
arrived at Fort Benning.

6.  On 6 October 1986, the applicant completed a waiver of enlistment
commitment disposition form (DA Form 2496).  In this form, he voluntarily
waived his initial assignment enlistment commitment to a Ranger unit.  In
this form, he indicated that he realized and fully understood that as a
result of this action, he would be assigned in accordance with any
remaining portion of his enlistment commitment and the needs of the
Service, and would be required to complete the full term of his enlistment.


7.  On 9 October 1986, Headquarters, United States Army Infantry Center
Orders Number 282-164 assigned the applicant to the 19th Adjutant General
Replacement Detachment, Fort Bragg, North Carolina with a reporting date of

31 October 1986.  On 19 November 1986, Headquarters, XVIII Airborne Corps
and Fort Bragg Orders Number 218-2 relieved the applicant from assigned,
not joined, 19th AG Replacement Detachment, and reassigned him to Fort
Bliss, Texas with a reporting date of 27 November 1986.

8.  The applicant’s record confirms he was AWOL on four separate occasions
between 24 March 1987 and 24 October 1988, which included a period of civil
confinement.  He ultimately returned to military control at Fort Ord,
California.

9.  The facts and circumstances pertaining the applicant’s separation
processing are not on file.  The record does includes a separation document
 (DD Form 214) that confirms on 17 November 1988, the applicant was
separated under the provisions of chapter 10, Army Regulation 635-200, for
the good of the service in lieu of trial by court-martial and received an
UOTHC discharge.  This document also shows that the applicant had completed
a total of 1 year, 5 months and 17 days of creditable active military
service and accrued 208 days of time lost due to AWOL.

10.  On 11 July 2001, the Army Discharge Review Board (ADRB), after
carefully evaluating the applicant’s case, determined his discharge was
proper and equitable and denied his 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 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.

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 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 date of application to the ABCMR is within three years of the
decision of the ADRB; therefore, the applicant has timely filed.

2.  The applicant’s contention that the breach of his enlistment contract
resulted in the difficulties that led to his UOTHC discharge was carefully
considered.  However, there is insufficient evidence to support this claim.


3.  The evidence of record confirms that on 6 October 1986, the applicant
voluntarily waived the initial Ranger assignment commitment portion of his
enlistment contract while attending the basic airborne course at Fort
Benning.  There is no evidence suggesting that he was coerced into this
waiver, or that the action was anything other than voluntary.

4.  The facts and circumstances surrounding his discharge processing are
not on file.  However, there is a properly constituted DD Form 214 on file
that contains the authority and reason for his discharge.  This document
confirms the applicant was separated for the good of the service, in lieu
of trial by court-martial.  This DD Form 214 carries with it a presumption
of government regularity in the separation process.

5.  Lacking evidence to the contrary, it is concluded that all requirements
of law and regulation were met and the rights of the applicant were fully
protected throughout the separation process.  Further, the applicant’s
discharge accurately reflects his overall record of undistinguished
service.

6.  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.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JLP__  __TAP __  __KWL__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




            ____Jennifer L. Prater ____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004106579                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/02/15                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1988/11/17                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |In lieu of court-martial                |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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