RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 September 2005
      DOCKET NUMBER:  AR20050000210


      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. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Bernard P. Ingold             |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 he would like to have his
discharge upgraded to an honorable discharge.

2.  The applicant states, in effect, that he was already waiting to be
discharged, when the unit that he was in started treating him badly.  Under
pressure, he left the unit and was picked up an hour later and thrown in
jail.  He was an E-4 at that time when they took his rank and kicked him
out of the military.  The applicant further stated that he had three
children when the incidents happen and he has struggled to raise them.  His
children want to see their father overturn this discharge.

3.  The applicant provides no additional information.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 17 October 1986, the date he was separated from active
duty service.  The application submitted in this case is dated 21 December
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 limitations 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 on
23 March 1981.  He completed the required training and was awarded military
occupational specialty 54K10 (Nuclear Biological Chemical Specialist).  The
highest grade he attained was sergeant pay grade E-5.

4.  Between December 1985 and May 1986, the applicant was counseled on ten
different occasions for his poor duty performance as a noncommissioned
officer and for indebtness.

5.  On 14 May 1986, the applicant received a Bar to Reenlistment
Certificate.  The bar to reenlist was based on the applicant’s severe lack
of self-discipline and lack of response to counseling.  The applicant was
advised of his rights to appeal.

6.  On 16 July 1986, the applicant accepted nonjudicial punishment (NJP)
for two occasions of failure to go at the prescribed time, his appointed
place of duty.  His imposed punishment was a reduction to pay grade E-4, a
forfeiture of $200.00 pay per month for 2 months and to perform 45 days
extra duty (suspended for
6 months).

7.  On 2 September 1986, the suspension of the punishment of a forfeiture
of $200.00 pay per month for 2 months and 45 days of extra duty was duly
executed.  The reason for the action was based on his failure to report to
formation.

8.  On 3 September 1986, court-martial charges were preferred against the
applicant for disobeying a lawful order and for being insubordinate toward
a noncommissioned officer.

9.  On 6 September 1986, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation action, the effects of
a discharge under other than honorable conditions (UOTHC) and of the rights
available to him.  The applicant voluntarily requested discharge for the
good of the service, in lieu of trial by court-martial.  In his request for
discharge, he acknowledged that he was guilty of the charge against him or
of a lesser-included offense therein contained which also authorizes the
imposition of a bad conduct or dishonorable discharge.  He further stated
that under no circumstances did he desire further rehabilitation, for he
had no desire to perform further military service.  He also stated his
understanding that if his discharge request was approved, he could 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.  He further indicated that he understood that
he could encounter substantial prejudice in civilian life by reason of a
UOTHC.

10.  On 17 September 1986, the applicant was reported for being absent
without leave.  He was returned to military control on 24 September 1986.


11.  On 15 October 1986, the separation authority approved the applicant’s
request for discharge and directed that he be reduced to the grade of E-1
and issued an Under Other Than Honorable Conditions Discharge Certificate.
On
17 October 1986, the applicant was discharged accordingly.  The separation
document (DD Form 214) he was issued confirms he completed 5 years,
6 months and 18 days of creditable active military service and accrued
6 days of time lost due to AWOL.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions was carefully considered and found to have
insufficient merit in this case.  Therefore, given the circumstances in
this case and his overall undistinguished record of service, there is
insufficient evidence to support his request at this time.

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.  All
requirements of law and regulation were met, the rights of the applicant
were fully protected throughout the separation process and his discharge
accurately reflects his overall record of short and undistinguished
service.

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.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 17 October 1986; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
16 October 1989.  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

___JEA     __BPI ___  __MJF __  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.




                                  __ _James E. Anderholm______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000210                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050922                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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