RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 December 2005
      DOCKET NUMBER:  AR2005004122


      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. Antoinette Farley             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Ms. Maribeth Love                 |     |Member               |
|     |Mr. Richard G. Sayre              |     |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 under other than honorable conditions
discharge be upgraded.

2.  The applicant states, in effect, upgrading his discharge would make him
eligible for veteran benefits in order to apply for a Veterans Affairs (VA)
Loan to purchase a house and a small business.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty) with a separation date of 17 July
1987, in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 17 July 1987, the date of his discharge from active duty.
 The application he submitted is dated 13 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 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 he enlisted in the Regular Army on 2 July
1985. The applicant completed basic and advanced individual training.  He
was trained in, awarded, and served in military occupational specialty
(MOS) 63B10 (Light Wheel Vehicle Mechanic).

4.  On 9 June 1987, a Charge Sheet (DD Form 458) was prepared preferring a
court-martial charge against the applicant for violating Article 86 of the
Uniform Code of Military Justice (UCMJ) by being AWOL from 2 March 1987
through 6 June 1987.

5.  On 10 June 1987, after consulting with counsel, the applicant submitted
a request for discharge for the good of the service under the provisions of
Army Regulation 635-200, chapter 10 and in so doing admitted guilt to the
offense.  He indicated in his request that he understood he could be
discharged under other than honorable conditions and furnished an Under
Other Than Honorable Discharge Certificate; 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 under other than
honorable discharge.

6.  U.S. Army Armor Center (USAARMC) Form 2722 (Medical Examination for
Separation Statement of Option), dated 8 June 1987, shows the applicant
indicated by initialing this form that he did not desire a separation
medical examination.  Additionally, the applicant elected not to submit a
statement in his own behalf.

7.  On 18 June 1978, the separation authority approved the applicant’s
request for discharge and directed that he receive an under other than
honorable conditions discharge.  On 17 July 1978, the applicant was
discharged accordingly.  The DD Form 214 he was issued confirms he
completed a total of 1 year, 9 months, and 12 days of creditable active
military service and that he accrued 96 days of time lost due to AWOL and
or confinement.

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

9.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-
martial.  A discharge under other than honorable conditions is normally
considered appropriate.

10.  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.  Whenever there is doubt, it is to be
resolved in favor of the individual.

11.  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 applicant contends his discharge should be upgraded in order to
allow him to be eligible for Veterans benefits for purchase of a house and
a small business.

2.  The evidence of record shows in this case he was separated under the
provisions of chapter 10, Army Regulation 635-200 for the good of the
service-in lieu of trial by court-martial and issued an Under Other Than
Honorable Discharge Certificate.

3.  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 from the Army in lieu of trial by court-martial.  All
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout the separation process.  Further, the
applicant’s discharge accurately reflects his overall record of service.

4.  The applicant's record of service shows charges were preferred against
the applicant for being AWOL for 96 days.

5.  Based on this record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  The applicant's excessive lost time also renders his
service unsatisfactory. Therefore, he is not entitled to either a general
discharge or an honorable discharge.

6.  The applicant’s contentions regarding VA benefits have been noted.
However, the ABCMR does not upgrade discharges solely for the purpose of
making the individual eligible for veterans or other benefits.



7.  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.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 17 July 1987.  Therefore, the time for
him to file a request for correction of any error or injustice expired on
16 July 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

_RGS___  _JTM____  _MBL___  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.





                                      __John T. Meixell__
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050004122                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051201                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |AR 635-200 Chap 10                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0000.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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