RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         4 October 2005
      DOCKET NUMBER:  AR20050002176


      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. Yvonne Foskey                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Mr. Larry C. Bergquist            |     |Member               |
|     |Ms. Carmen Duncan                 |     |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 to an honorable discharge (HD).

2.  The applicant states, in effect, he would like to have his UOTHC
discharge upgraded to an HD.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 29 June 1988.  The application submitted in this case is
dated
28 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’s record shows that he enlisted in the Regular Army and
entered active duty on 8 May 1986.  He was trained in, awarded, and served
in military occupational specialty (MOS) 63W (Wheel Vehicle Repairer), and
the highest rank he attained while serving on active duty was private first
class (PFC).

4.  The applicant’s record documents no acts of valor, significant
achievement or service warranting special recognition.  On 26 April 1988, a
Charge Sheet
(DD Form 458) was completed on the applicant preferring a court-martial
charge against him for violating Article 121 of the Uniform Code of
Military Justice (UCMJ), by stealing a diamond ring valued at $1,285.00.

5.  On 7 June 1988, applicant consulted with legal counsel and was advised
of the basis for the contemplated trial by court-martial, the maximum
permissible punishment authorized under the UCMJ, the possible effects of
an UOTHC, and of the procedures and rights that were available to him.
Subsequent to receiving this legal counsel, the applicant voluntarily
requested discharge for the good of the service, in lieu of trial by court-
martial.
6.  In his request for discharge, the applicant also indicated that he
understood that by requesting discharge, he acknowledged he understood 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.

7.  On 22 June 1988, the separation authority approved the applicant’s
request for discharge and directed that he receive an UOTHC discharge.  On
29 June 1988, the applicant was discharged accordingly.  The DD Form 214 he
was issued confirms he completed a total of 2 years, 1 month, and 22 days
of creditable active military service.

8.  There is no evidence showing that the applicant applied to the Army
Discharge Review Board for an upgrade to his discharge within its 15-year
statue of limitations.

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
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 under
other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have his UOTHC discharge upgraded to an
honorable discharge was carefully considered.  However, there is an
insufficient evidentiary basis to support granting the requested relief.

2.  The evidence of record confirms the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, he voluntarily requested
discharge in lieu of trial by court-martial.  The record further confirms
all requirements of law and regulation were met and that the rights of the
applicant were fully protected throughout the separation process.
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 29 June 1988.  Thus, the time for him
to file a request for correction of any error or injustice expired on 28
June 1991.  He failed to 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

___MDM_  __LCB __  ___CD__  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.




                                  ____Mark D. Manning_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050002176                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005-10-04                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1988/06/29                              |
|DISCHARGE AUTHORITY     |AR635-200  . . . . .                    |
|DISCHARGE REASON        |Chp 10 Good of Service                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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