RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 January 2005
      DOCKET NUMBER:  AR2004106902


      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. Michael J. Fowler             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms. Yolanda Maldonaldo            |     |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 discharge be upgraded from under other
than honorable conditions to an honorable discharge.

2.  The applicant states, in effect, that he was falsely accused of wearing
the ranger tab and airborne badge on his uniform.

3. The applicant further states that he was accused of taking and altering
his 201 file [Military Personnel Records Jacket] and being absent without
leave (AWOL).

4.  The applicant provides seven letters of support.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error that
occurred on
9 November 1989, the date of his separation from active duty.  The
application
submitted in this case is dated 2 April 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 enlisted in the Regular Army on 28 February 1973 and
successfully completed basic training and advanced individual training.  He
was awarded military occupational specialty 76Y (Unit Supply).

4.  A DD Form 458 (Charge Sheet), dated 14 September 1989, shows charges
were preferred against the applicant for being absent without leave (AWOL)
for the periods 3 August 1989 through 4 August 1989 and 18 August 1989
through 5 September 1989 and for wrongfully and without authority wearing
the ranger tab and the master parachutist badge.

5.  Records show that a pre-trial investigation was conducted on 11 October
1989.  The investigating officer concluded after questioning of witnesses
and review of evidence that the applicant committed the offenses for which
he was charged.

6.  On 16 October 1989, after consulting with counsel, the applicant
submitted a request for discharge for the good of the service under the
provisions of chapter 10 of Army Regulation 635-200 (Personnel
Separations).  The applicant indicated in his request that he understood he
could be discharged under other than honorable conditions and furnished an
Under Other Than Honorable Conditions Discharge; that he may be deprived of
many or all Army benefits; that he may be ineligible for many or all
benefits administered by the Department of Veterans Affairs; and that he
may be deprived of his rights and benefits as a veteran under both Federal
and State law.  He also acknowledged that he may expect to encounter
substantial prejudice in civilian life.

7.  On 24 October 1989, the appropriate authority approved the applicant's
request for discharge for the good of the service.  He directed that the
applicant be issued an under other than honorable conditions discharge and
be reduced to the lowest enlisted grade.  The applicant completed 16 years,
7 months, and 24 days of creditable active service with 18 days of lost
time due to AWOL.

8.  On 10 January 1997, the Army Discharge Review Board (ADRB) considered
the applicant’s request to change the characterization of his discharge.
The ADRB unanimously determined that the discharge was proper and equitable
and that the characterization of his discharge was proper as under other
than honorable conditions.

9.  The applicant submitted an undated letter of support from a 1SG (First
Sergeant) of the Southeast Regional Medical Command that stated he has
known the applicant since August 1989.  The author further stated the
applicant is a God fearing man and preaches God's word to the utmost.  The
author contends it was impossible for this Soldier to be accused of
stealing his 201 file and being AWOL after he had officially PCSd
(Permanent Change of Station), cleared the post, and properly signed out of
his company.  The author continued that the applicant's chain of command
was not interested in taking care of the Soldier.

10.  The applicant submitted an undated letter of support from a CSM
(Command Sergeant Major) that stated he strongly recommended that the
applicant's discharge be upgraded.  The author further stated " I don't
condone any wrong, but I think this applicant's punishment was too severe
for him and his family."

11.  The applicant submitted an undated letter of support from a retired
CSM that stated he had worked with the applicant on active duty and as a
civilian.  The author further stated that applicant was solely discharged
on the grounds of one incident.  He believed that the chain of command did
not use good discretion in handling this matter and that the applicant
received an unjust punishment.
12.  The applicant submitted an undated letter of support from his pastor
that stated he has known the applicant for the past 12 years.  The author
further stated that the applicant was a Soldier of the highest caliber.  In
his teaching and training of the young and inexperienced, his outstanding
qualities of supervision were demonstrated.  The author continued that he
believes the applicant was loyal in the military, and had known the
applicant to be loyal in the community as well as the church.

13.  The applicant submitted an undated letter of support from a retired
SGM (Sergeant Major) that stated he has known the applicant for 17 years.
The author further stated, "The applicant is a minister in our church and
he has instilled leadership, motivation, and confidence in our young men
and women."

14.  The applicant submitted an undated letter of support from a church
minister that stated that he has known the applicant for 12 years.  The
author further stated that, "Three of those years were in the United States
Army as a Supply Sergeant.  During those years he demonstrated nothing but
the best conduct as a non-commissioned officer (NCO)."  He further stated
the applicant teaches Sunday school to the youth, ministers the Word on
some occasions, and he teaches the ministerial staff.

15.  The applicant submitted a undated letter of support from a retired
Sergeant First Class (SFC) that stated he has found the applicant to be a
very nice person willing to help everyone.  He is a loving husband and
father and is also a faithful church member and an elder who ministers the
Word of God.

16.  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

17.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.


18.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the soldier’s separation specifically allows such
characterization.

19.  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 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 contends that he was falsely accused of wearing the
ranger tab and airborne badge on his uniform.  The evidence of record shows
that the pre-trial investigation found the applicant had committed the
offenses for which he was charged.

2.  The applicant further contends that he was accused of taking and
altering of his 201 file and going AWOL.  There is no evidence and the
applicant has not provided evidence that shows he did not go AWOL or alter
his 201 file.

3.  The evidence of record confirms that the applicant was charged with the
commission of offenses punishable under the Uniform Code of Military
Justice 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 the offenses
charged.

4.  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.  Therefore, it is
concluded that the characterization of and reason for the applicant’s
discharge were both proper and equitable.  As a result, his discharge
accurately reflects his overall record of service.

5.  The applicant’s post service conduct is noteworthy.  However, good post
service conduct alone is not a basis for upgrading a discharge and, upon
review, the applicant's good post service conduct is not sufficient to
mitigate his indiscipline in the Army.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22, the date of the ADRB action;
therefore, the time for the applicant to file a request for correction of
any error or injustice expired on 9 January 2000.  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

__FE____  __RTD__  __YM___  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                 |AR2004106902                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |6 January 2005                          |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0400.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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