RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        30 August 2005
      DOCKET NUMBER:  AR20050000718


      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. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Paul Smith                    |     |Chairperson          |
|     |Ms. Yolanda Maldonado             |     |Member               |
|     |Mr. Leonard Hassell               |     |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.

2.  The applicant states that he was put in pre-trial confinement for five
months for being absent without leave (AWOL) for 18 days and for an
unlawful weapon charge.  He states that the unlawful weapon charge was
brought by a civilian court.  After his release from the military, he was
found not guilty as he was on a job site as a security guard at that time.
He also found out that he was selected for promotion to E-7 while he was in
confinement.  He contends that he was not provided adequate counsel, was
left in confinement for an extreme period, and was misled by his chain of
command.

3.  The applicant provides two DD Forms 214 (Certificate of Release or
Discharge from Active Duty); a docket of court proceedings; his employment
agreement; his Honorable Discharge Certificate; two Certificates of
Achievement; five Letters of Commendation; two Letters of Appreciation; a
Letter awarding him the Distinguished Trooper Award; orders awarding him
the Army Commendation Medal, the Army Achievement Medal, the Master
Parachutist Badge, and the Good Conduct Medal (Third Award); his orders
promoting him to staff sergeant; and his Enlisted Evaluation Report for the
period March 1986 through October 1986.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 9 March 1989.  The application submitted in this case is dated
5 January 2005.

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 initially enlisted in the Regular Army on 10 March 1975.
He completed the required training and was awarded military occupational
specialty 13F (Fire Support Specialist).  He was honorably released from
active duty on 9 March 1979 and was transferred to the U.S. Army Reserve
Control Group.
4.  The applicant enlisted in the Regular Army on 14 October 1980 for a
period of three years.

5.  He was promoted to staff sergeant with an effective date of 1 May 1982
and a date of rank of 19 April 1982.

6.  The applicant was discharged from active duty on 13 July 1983 for the
purpose of immediate reenlistment.  He reenlisted on 14 July 1983 for a
period of six years.

7.  On 30 June 1987, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice for failing to go to his
appointed place of duty, three specifications.  His punishment consisted of
a forfeiture of 7 days pay ($321.00).

8.  On 1 April 1988, the applicant accepted nonjudicial punishment under
Article 15 for failing to go to his appointed place of duty, three
specifications.  His punishment consisted of reduction to the grade of E-5,
suspended, and to be automatically remitted if not vacated before 27
September 1988.

9.  The applicant was AWOL from 3 November through 21 November 1988.

10.  On 22 November 1988, the applicant was arrested by civil authorities
at the Junction City Police Department in the state of Kansas for unlawful
use of a weapon.  On the following day, the applicant was turned over to
military authorities at Fort Riley, Kansas.

11.  The applicant was placed in pretrial confinement on 24 November 1988
and remained in confinement until 1 March 1989.

12.  The applicant's discharge packet is not available.  However, his DD
Form 214 shows he was discharged on 9 March 1989 under the provisions of
Army Regulation 635-200, chapter 10 for the good of the service – in lieu
of court-martial with issuance of an UOTHC discharge.  He completed 5
years, 7 months and 26 days creditable active service during the period
under review and 12 years, 4 months and 7 days total active military
service.

13.  On 13 April 1989, the applicant was found not guilty by a civilian
court of the charge of unlawful use of a weapon.

14.  There is no evidence of record which shows the applicant applied to
the Army Discharge Review Board (ADRB) within its 15-year statute of
limitations.

15.  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 discharge UOTHC
is normally considered appropriate.

16.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor.  Issuance of an honorable discharge
is predicated upon proper military behavior and proficient performance of
duty during the member's current enlistment or period of obligated service
with due consideration to the member's age, length of service and general
aptitude.  Where a member has served faithfully and performed to the best
of his or her ability, an honorable discharge certificate should be
furnished.

17.  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.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of the applicant's chapter 10 discharge proceedings, the
applicant's voluntary request for separation under the provisions of Army
Regulation 635-200, chapter 10, for the good of the service, to avoid trial
by court-martial, is presumed to have been administratively correct and in
conformance with applicable regulations.  There is no indication that the
request was made under coercion or duress.

2.  The applicant's service record shows he received two Article 15s and
was AWOL for 19 days during his last period of service, while he was a
staff sergeant.

3.  Although the applicant's discharge packet is not available, it is
presumed the separation authority appropriately directed issuance of an
UOTHC discharge based on his overall record during his last period of
service.

4.  The applicant's contentions have been noted; however, he has failed to
show through the evidence submitted or the evidence of record that the type
of discharge issued to him was in error or unjust.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 9 March 1989; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 8 March 1992.  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

PS______  YM______  LH______  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.




                                  Paul Smith____________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000718                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050830                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19890309                                |
|DISCHARGE AUTHORITY     |AR635-200, chapter 10                   |
|DISCHARGE REASON        |For the good of the service-in lieu of  |
|                        |trial by court-martial                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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