RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        4 January 2005
      DOCKET NUMBER:  AR2004107103


      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:

|     |Ms. Karen A. Heinz                |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Mr. James B. Gunlicks             |     |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 suffers from Post-Traumatic
Stress Disorder (PTSD) from serving in Desert Storm.  The applicant
continues that it caused him problems and his marriage to fall apart.  The
applicant concludes he previously received an honorable discharge and that
he was a good Soldier.

3.  The applicant provides no documentation in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 22 February 1996, the date of his separation from the Army.
The application submitted in this case is dated 19 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 enlisted in the Regular Army on 10 June 1988 and
successfully completed basic training and advanced individual training.  He
was awarded military occupational specialty 54B (Chemical Specialist) and
was honorably released from active duty on 4 September 1991.  He served in
the Texas Army National Guard from 1 December 1991 through 27 May 1993.  On
29 May 1993, he reenlisted for a term of 3 years in the Regular Army.

4.  A DD Form 458 (Charge Sheet), dated 12 December 1995, shows charges
were preferred against the applicant for being absent without leave (AWOL)
for the period 6 May 1995 through 8 December 1995.

5.  On 12 December 1995, records show that the applicant indicated that he
did not want to undergo a medical examination for separation from active
duty.

6.  On 12 December 1995, 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 because of an Under Other Than
Honorable Conditions Discharge.

7.  On 26 January 1996, the appropriate authority approved the applicant's
request for discharge for the good of the service under the provisions of
chapter 10 of Army Regulation 635-200.  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 4 years, 2 months, and
19 days of creditable active service with 217 days of lost time due to
AWOL.

8.  On 14 April 2004, 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 discharge was proper as under other than
honorable conditions.

9.  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.

10.  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.

11.  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.

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 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 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 contends that he suffers from PTSD after serving in
Desert Storm and that caused him to have personal problems.  There is no
evidence and the applicant has not provided evidence that shows he has PTSD
or that PTSD caused him to have personal problems.  In addition, records
show that he declined to have a medical examination prior to his separation
from the active duty.  Therefore, there is no basis for this argument.

3.  The evidence of record confirms that the applicant was charged with the
commission of an offense punishable under the Uniform Code of Military
Justice that carried 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
offense 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 prior service conduct is noteworthy.  However, good
prior 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.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__KAH__  __RLD___  __JBG_ _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




                                  ___ Ms. Karen A. Heinz ___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004107103                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |4 January 2005                          |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0133.000                            |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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