RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         16 August 2005
      DOCKET NUMBER:  AR20050003160


      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 J. Foskey              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. James B. Gunlicks             |     |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),
and change to his narrative reason for separation.

2.  The applicant states, in effect, that since his discharge, and prior to
the incident [reckless driving, leaving scene of accident, and disobeying a
lawful general regulation] that led to his discharge, he acted
professionally and was eager to excel in every facet of his life.  He also
states that he has come to grips with his misuse of alcohol.  He takes full
responsibility for the incident, apologizes, and is thankful he and his
passenger were not seriously injured.

3.   The applicant further states it has been 17 years since his discharge,
and he has been employed with Merrill Lynch Financial Services for 13 years
as a successful and moral overseer of assets.  He has been married for 5
years and has two beautiful boys as a result of a loving and nurturing
family life.  He further claims he would like his discharge upgraded to
reflect his true nature, both now and while he served in the military.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice that
occurred on 30 March 1987, the date of his separation from active duty.
The application submitted in this case is dated 6 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 records show that he enlisted in the Army for four
years and entered active duty on 5 January 1983.  He completed basic combat
training and advanced individual training, and was awarded military
occupational specialty 63S (Heavy Wheeled Vehicle Mechanic).  On 11 July
1986, he reenlisted for six years.

4.  The applicant's record does not contain the pertinent charge sheet;
however, it does show he was pending trial by a Special Court-Martial
(SPCN) empowered to adjudge a Bad Conduct Discharge (BCD), for disobeying a
lawful general regulation by driving in a reckless manner and leaving the
scene of an accident.

5.  On 9 February 1987, he consulted with legal counsel and was advised of
the basis for the contemplated trial by court-martial under circumstances
which could lead to a BCD, the effects of the request for discharge, of the
rights available to him and of the effects of an UOTHC discharge.
Subsequent to this counseling, he voluntarily requested discharge for the
good of the service, in lieu of trial by court-martial, under the
provisions of chapter 10 of Army Regulation 635-200.

6.  In his request for discharge, the applicant acknowledged guilt to the
offenses he was charged with, or of a lesser included offense that
authorized a punitive discharge.  He also acknowledged that he understood
he could be deprived of many or all Army benefits; that he may be
ineligible for many or all Veterans Administration benefits; that he may be
deprived of his rights and benefits as a veteran under both Federal and
State law; and that he may expect to encounter substantial prejudice in
civilian life based on an UOTHC discharge.

7.  On 20 February 1987, the separation authority approved the applicant’s
request for discharge and directed he receive an UOTHC discharge.  On
30 March 1987, the applicant was discharged accordingly.  The separation
document (DD Form 214) he was issued shows he completed 4 years, 2 months,
and 26 days of active military service, and that he earned the following
awards during his active duty tenure:  Noncommissioned Officer Professional
Development Ribbon, Army Service Ribbon, Army Good Conduct Medal,
Army Achievement Medal and Expert Qualification Badge with Rifle Bar.
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 contention that his discharge should be upgrade to
reflect his true character was carefully considered.  However, although his
post service conduct has been admirable, this factor alone is not
sufficiently mitigating to warrant an upgrade of his discharge or change to
his narrative reason for separation.

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 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 30 March 1987.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 29 March 1990. 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

___MHM_  __JTM __  ___JBG _  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.





                                  ____Melvin H. Meyer______
                                            CHAIRPERSON
                                    INDEX

|CASE ID                 |AR20050003160                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005-08-16                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1987/03/30                              |
|DISCHARGE AUTHORITY     |AR 635-200. . . . .                     |
|DISCHARGE REASON        |Chapter 10                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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