RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          8 December 2005
      DOCKET NUMBER:  AR20050003812


      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             |
|     |Mr. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Mr. Scott W. Faught               |     |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 under other than honorable
conditions be upgraded to at least a general discharge.

2.  The applicant states that he was told at the time of his discharge that
it was possible to get a discharge upgraded if it could be shown that the
person had improved their behavior over a period of time.  In his case, he
has had a clean non-military record for the past 20 years.

3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 18 January 1985.  The application submitted in this case is
dated 1 March 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.  He enlisted in Cincinnati, Ohio, on 8 March 1983 for a period of 4
years, training as an infantryman under the combat arms unit/area of choice
option, enrollment in the Army College Fund, and an $8,000 cash enlistment
bonus.

4.  He completed his one-station unit training (OSUT) and airborne training
at Fort Benning, Georgia, and was transferred to Fort Riley, Kansas, for
duty as an indirect fire infantryman.  His cash enlistment bonus was paid
on 17 June 1983.

5.  On 18 April 1984, nonjudicial punishment was imposed against him for
the wrongful use of marijuana.  His punishment consisted of a reduction to
the pay grade of E-2 and a forfeiture of pay.

6.  The applicant went absent without leave (AWOL) on 15 October 1984 and
he remained absent until 22 October 1984.

7.  Charges were preferred against the applicant for the AWOL offense, one
specification of accessory after the fact in assisting and comforting in
the larceny of a privately owned vehicle, and one specification of
dereliction of duties by storing his rifle in his wall locker.

8.  On 13 December 1984, after consulting with defense counsel, the
applicant submitted a request for discharge for the good of the service,
under the provisions of Army Regulation 635-200, chapter 10, in lieu of
trial by             court-martial.  In his request he indicated that he
understood the charges that had been preferred against him, that he was
making the request of his own free will, without coercion from anyone and
that he was aware of the implications attached to his request.  He also
admitted that he was guilty of the charges against him or of lesser
included offenses which authorized the imposition of a bad conduct or
dishonorable discharge.  He acknowledged that he understood that he could
receive a discharge under other than honorable conditions and that he might
be deprived of all benefits as a result of such a discharge.  He further
declined to submit a statement or explanation in his own behalf.

9.  The appropriate authority (a major general) approved his request and
directed that he be discharged under other than honorable conditions.

10.  Accordingly, he was discharged under other than honorable conditions
on 18 January 1985, under the provisions of Army Regulation 635-200,
chapter 10, in lieu of trial by court-martial.  He had served 1 year, 10
months, and 4 days of total active service and had 7 days of lost time due
to AWOL.

11.  There is no evidence in the available records to show that he ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that board's 15-year statute of limitations.

12.  Army Regulation 635-200 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 at
any time after charges have been preferred, submit a request for discharge
for the good of the service in lieu of trial by court-martial.  A condition
of submitting such a request is that the individual concerned must admit
guilt to the charges against them or of a lesser included offense which
authorizes the imposition of a bad conduct or dishonorable discharge and
they must indicate that they have been briefed and understand the
consequences of such a request as well as the discharge they might receive.
 A discharge under other than honorable conditions was then and still is
normally considered appropriate.
DISCUSSION AND CONCLUSIONS:

1.  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, was administratively correct and in
conformance with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a
trial by court-martial, he voluntarily requested a discharge for the good
of the service in hopes of avoiding a punitive discharge and having a
felony conviction on his records.  In doing so he admitted guilt to the
charges against him.

4.  The applicant's contentions have been noted; however, they are not
sufficiently mitigating to warrant relief when compared to his
undistinguished record of service during such a short period.

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 18 January 1985; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 17 January 1988.  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

__rtd___  __jbg___  __swf___  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.



                                  Richard T. Dunbar
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050003812                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051208                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |1985/01/18                              |
|DISCHARGE AUTHORITY     |AR635-200/CH10 . . . . .                |
|DISCHARGE REASON        |GD OF SVC                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |689/A70.00                              |
|1.144.7000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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