RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          6 October 2005
      DOCKET NUMBER:  AR20050003001


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Curtis Greenway               |     |Chairperson          |
|     |Mr. Richard Dunbar                |     |Member               |
|     |Ms. Laverne Berry                 |     |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, characterized as under other
than honorable conditions be upgraded.

2.  The applicant states he did not receive a fair trial.  He contends that
his discharge should be upgraded for the following reasons:  (1)  clemency
is warranted because it is an injustice for him to continue to suffer the
adverse consequences of a bad discharge; (2) under current standards, he
would not have received the type of discharge he did; (3) his average
conduct and efficiency ratings/behavior and proficiency marks were good (or
pretty good);     (4) he received awards, decorations, and letters of
recommendation; (5) his record of promotions shows he was generally a good
service member; (6) there were other acts of merit; (7) he was so close to
finishing his tour that it was unfair to give him a bad discharge; (8) he
had a prior honorable discharge; (9) he has been a good citizen since his
discharge; (10) his record of nonjudicial punishments and record of being
absent without leave (AWOL) indicate only isolated or minor offenses; (11)
the punishment he received was too severe compared with today's standards;
(12) the punishment he received was too harsh, it was much worse than most
people got for the same offense; (13) his command abused its authority when
it decided to discharge him and give him a bad discharge; and (14) his
discharge was improper because the command did not follow the discharge
regulations.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 31 July 1986.  The application submitted in this case is
undated; however, it was received in this office on 28 February 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 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 was ordered to active duty on 15 June 1972 for training
and was released from active duty on 21 October 1972.  He enlisted on 14
August 1979 for a period of 4 years.  He trained as a food service
specialist.  On
12 February 1981, the applicant extended his enlistment for 8 months.  On
11 March 1984, the applicant was honorably discharged for immediate
reenlistment.  He reenlisted on 12 March 1984 for a period of 6 years.

4.  On 17 August 1985, nonjudicial punishment was imposed against the
applicant for failure to repair.  His punishment consisted of a forfeiture
of pay, restriction, and extra duty.

5.  On 6 November 1985, nonjudicial punishment was imposed against the
applicant for failing to obey a lawful order and behaving with disrespect
toward a captain.  His punishment consisted of a reduction to E-4
(suspended for 90 days), a forfeiture of pay, and restriction.  On 12 March
1986, the suspended portion of the punishment was vacated.

6.  The facts and circumstances surrounding the applicant’s discharge are
not contained in the available records.

7.  On 10 June 1986, the applicant consulted with counsel and requested
discharge for the good of the service under the provisions of Army
Regulation 635-200, chapter 10.  He indicated in his request that he
understood he might be discharged under conditions other than honorable and
furnished an other than honorable discharge; that he might be ineligible
for many or all benefits administered by the Veterans Administration; that
he would be deprived of many or all Army benefits; and that he might be
ineligible for many or all benefits as a veteran under both Federal and
State law.  He also acknowledged that he might expect to encounter
substantial prejudice in civilian life because of an under other than
honorable discharge.  He elected to make a statement in his own behalf;
however, his statement is not available.

8.  On 13 June 1986, the intermediate commander recommended that the
applicant's request for discharge be disapproved and that the command
proceed with his court-martial.  His letter also states the applicant was
charged with being AWOL for 40 days.

9.  On 3 July 1986, the separation authority approved the applicant's
request for discharge and directed that he be furnished a discharge under
other than honorable conditions.

10.  Accordingly, the applicant was discharged with service characterized
as under other than honorable conditions on 31 July 1986 under the
provisions of Army Regulation 635-200, chapter 10, for the good of the
service in lieu of trial by court-martial.  He had served a total of 7
years, 2 months, and 16 days of creditable active service with a total of
41 days of lost time due to AWOL.
11.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge within its 15-year statute of
limitations.

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,
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.

13.  Army Regulation 635-200, currently in effect, sets forth the basic
authority for the separation of enlisted personnel.  Chapter 10 of the
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 in lieu of trial by court-
martial.  The request may be submitted at any time after court-martial
charges have been preferred.  A discharge under other than honorable
conditions is normally considered appropriate.

14.  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.

15.  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.  The evidence of record does not support the applicant's contention that
under current standards he would not have received the type of discharge he
did.  The current governing regulation states that an individual discharged
in lieu of trial by court-martial would normally be furnished an
undesirable discharge, characterized as under other than honorable
conditions.

2.  Good post-service conduct alone is not a basis for upgrading a
discharge.

3.  There is no evidence of record which shows the applicant's command
abused its authority when it decided to discharge him and give him a "bad"
discharge and that his discharge was improper because the command did not
follow the discharge regulations.

4.  In the absence of evidence to the contrary, it must be presumed that
the applicant’s separation was administratively correct and in conformance
with applicable regulations.  Without having the entire discharge packet to
consider, it is presumed his characterization of service was commensurate
with his overall record of service during his last enlistment.  As a
result, there is no basis for granting the applicant's request.

5.  Records show the applicant should have discovered the alleged injustice
now under consideration on 31 July 1986; therefore, the time for the
applicant to file a request for correction of any injustice expired on 30
July 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

CG____  RD______  LB______  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.




            ___Curtis Greenway____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050003001                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051006                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19860731                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 10                  |
|DISCHARGE REASON        |For the good of the service in lieu of  |
|                        |trial by court-martial                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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