RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 November 2005
      DOCKET NUMBER:  AR20050001925


      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. Prevolia A. Harper            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Mr. Melvin H. Meyer               |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 restoration of his previous rank and that his
discharge under other than honorable conditions (UOTHC) be upgraded to
honorable.

2.  The applicant states, in effect, that the Army Discharge Review Board
failed to properly review medical evidence which was pertinent to the
reasons for his absence from the unit.

3.  The applicant provides:

      a.  A self-authored letter, dated 7 March 1996.


      b.  A self-authored letter, dated 20 December 2004.

      c.  An Army Discharge Review Board (ADRB) Decision Document, dated 26
December 1989.


      d.  Medical Records from the M.D. Anderson Hospital, Houston, Texas.


      e.  A DD Form 214 (Certificate of Release or Discharge from Active
Duty) with an effective date of 28 June 1985.


      f.  A letter from the U.S. Army Reserve Personnel Center, dated 1
March 1990.
      g.  A copy of his DD Form 20 (Enlisted Qualification Record).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 28 June 1985.  The application submitted in this case is dated
20 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 enlisted in the Army on 28 July 1982.  He successfully
completed basic and advanced individual training and was awarded the
military occupational specialty (MOS) 93F10 (Field Artillery Meterological
Crewmember).

4.  On 2 October 1984, the applicant received a letter of reprimand from
the commander, Headquarters and Headquarters Battery, 24th Infantry
Division (Mechanized) Artillery at Fort Stewart, Georgia.  The letter of
reprimand stated that the applicant improperly backed a military van into
an aluminum building which endangered the lives of other Soldiers and
resulted in damage to government property.

5.  On 29 January 1985, the applicant received nonjudicial punishment (NJP)
for being absent from his unit from on or about 21 January 1985 to 22
January 1985. His punishment consisted of reduction to pay grade E-3
(suspended for 90 days), forfeiture of $150.00 for one month, and extra
duty for 14 days.

6.  On 9 April 1985, the applicant was reported as being absent without
leave (AWOL) from his unit.  On 9 May 1985, the applicant was dropped from
the rolls (DFR) for desertion.  On 17 May 1985, the applicant surrendered
to military authorities at Fort Sam Houston, Texas and was returned to
military control.

7.  A DD Form 458 (Charge Sheet), dated 18 May 1985, shows that charges
were preferred against the applicant for being AWOL for the period 9 April
1985 to 17 May 1985.

8.  On 22 May 1985, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial and the
maximum permissible punishment authorized under the UCMJ, the possible
effects of an UOTHC discharge, and of the procedures and rights available
to him.  Subsequent to this counseling, the applicant voluntarily requested
discharge, for the good of the service, in lieu of trial by court-martial.


9.  The applicant indicated in his request for discharge that he understood
he could be discharged under other than honorable conditions and furnished
an UOTHC 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 UOTHC Discharge. The applicant did not submit a
statement on his behalf and waived a medical examination.

10.  On 17 June 1985, 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 UOTHC Discharge Certificate.  On 28 June 1985, the applicant was
discharged accordingly.  The DD Form 214 he was issued shows that he
completed 2 years, 9 months, and 21 days of creditable active service with
a total of 40 lost days due to AWOL.

11.  The applicant applied to the ADRB to upgrade his discharge.  On 26
December 1989, the ADRB reviewed and denied the applicant's request for
upgrade.  The ADRB unanimously voted that the applicant's discharge was
proper and equitable and that the discharge was properly characterized as
under other than honorable conditions.

12.  The applicant provided medical records from the University of Texas
M.D. Anderson Hospital and Tumor Institute.  These records, including
Follow-up and Progress Notes, dated 18 April 1985, confirmed that the
applicant was diagnosed with a soft tissue tumor of the right leg.  These
records also show that the applicant informed the medical staff that he was
unemployed at that time (although he was AWOL from his unit).

13.  The applicant provided a self-authored letter in which he provides
clarification of the events leading to his discharge.  He stated, in
effect, that on many occasions from 1983 to 1984 he voiced his concern
regarding the tumor to his superiors.  He continued that while
participating in desert exercises his combat boots caused increasing pain.
He further stated that he showed the tumor to his section chief who never
suggested that he visit the medic station and only given Tylenol for the
pain.

14.  The applicant further stated that perhaps his complaints were
misconstrued as an attempt to avoid performing his military duties.  He
explained that after unsuccessful attempts at seeking medical care, he made
the decision to seek medical care on his own.  He continued that he was
granted a four day pass which covered the period 5 through 9 April 1985 and
he boarded a plane on 7 April 1985 and flew to Texas where he subsequently
had surgery to remove the tumor.

15.  The applicant submitted a copy of a letter from an individual who
stated, in effect, that the applicant, during his military service,
discovered a large tumor which was not treated by Army doctors despite his
concerns.  The individual further stated that the applicant sought
treatment from the M.D. Anderson Cancer
Center, where he had surgery to remove the tumor.  She [the individual]
explained that the applicant called his unit and informed them that he
could not walk due to his surgery and later turned himself in at a local
Navy base.

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.
An UOTHC discharge is normally considered appropriate.

17.  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’s claim that his medical treatment was a factor that
caused his misconduct and these factors were not previously considered by
the ADRB was carefully considered.  However, there is no evidence to
support the applicant’s claim and even if true, seeking medical treatment
would not be a sufficiently mitigating factor that would excuse his
misconduct or warrant granting the requested relief.

2.  There is no evidence in the available records which show the applicant
made any attempt to contact his chain of command or medical personnel
regarding any concerns he had about his medical condition.  Although
medical records submitted by the applicant confirmed that he had surgery to
remove a tumor, there is no explanation provided which would justify his
misconduct.  Additionally, the medical records submitted by the applicant
shows that he informed medical staff at the M.D. Anderson Hospital that he
was unemployed at a time when he was actually AWOL.


3.  The applicant was reduced to the lowest grade and discharged under the
provisions of chapter 10, Army Regulation 635-200.  There is no evidence
his former chain of command acted improperly by reducing his rank.
Therefore, there is no basis for restoring his previous rank.

4.  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.  In
doing so, he admitted guilt to an offense(s) under the UCMJ that authorized
a punitive discharge.  The record further shows that all requirements of
law and regulation were met and that the rights of the applicant were fully
protected throughout the separation process.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 December 1989, 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 25 December 1992.  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

___SK __  __MHM__  __LMD__  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.




                                  _____ Stanley Kelley _____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050001925                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051129                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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