RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         6 December 2005
      DOCKET NUMBER:  AR20050005114


      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. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Donald W. Steenfott           |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 he be given a medical discharge
in lieu of the under other than honorable conditions (UOTHC) discharge he
now holds.

2.  The applicant states, in effect, he was disabled before entering the
Army and since 1996, he has been on Supplemental Security Income (SSI)
Disability for a diagnosed severe mental disorder.  He claims he has
suffered from this disorder since the age of five, and that these disorders
stem from severe sexual, physical and emotional abuse he received from a
now retired Air Force service member.  He also states he reported the abuse
to his dad's superior officers on numerous occasions and was ridiculed.  He
further states that he has literally been diagnosed by professionals as
being mentally ill until being placed on medication in 1996, and as a
result, he should have received a medical discharge instead of the UOTC
discharge he now holds.  He requests an upgrade of his discharge in order
to be allowed to receive the Veteran's benefits he has already applied for.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 9 August 1989.  The application submitted in this case is
dated
28 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 Army and entered active
duty on 27 January 1987.  He was trained in, awarded, and served in
military occupational specialty (MOS) 45K (Tank Turret Repairer).  His
record confirms the highest rank he attained while serving on active duty
was private (PV2).

4.  On 28 June 1989, a Charge Sheet (DD Form 458) was prepared preferring a
court-martial charge against the applicant for three specifications of
violating Article 86 of the Uniform Code of Military Justice (UCMJ).
Specification I was for being absent without leave (AWOL) from on or about
3 through on or about
4 April 1989.  Specification II was for being AWOL from on or about 4 April
through on or about 5 May 1989.  Specification III was for being AWOL from
on or about 6 May through on or about 28 June 1989.

5.  On 30 June 1989, the 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 discharge, and of the procedures and rights 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, under the provisions of chapter 10, Army Regulation
635-200.

6.  In his request for discharge, the applicant confirmed he was making the
request of his own free will and he acknowledged that he was guilty of at
least one of the charges against him, or of at least one lesser included
offense therein contained that also authorized the imposition of a bad
conduct or dishonorable discharge.  He also acknowledged his understanding
that he could be furnished an UOTHC discharge, that 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 of his
rights and benefits as a Veteran under both Federal and State law.  He
further acknowledged that he understood he could expect to encounter
substantial prejudice in civilian life because of the UOTHC discharge.
Both the applicant and his legal counsel authenticated this document with
their signatures.

7.  On 21 July 1989, the separation authority approved the applicant’s
request for discharge and directed that he be reduced to the lowest grade
and receive an UOTHC.  On 9 August 1989, the applicant was discharged
accordingly.  The separation document (DD Form 214) he was issued confirms
he completed a total of 2 years, 3 months, and 17 days of creditable active
military service and accrued 52 days of time lost due to AWOL.

8.  The applicant’s Military Personnel Records Jacket (MPRJ) contains no
documentation indicating the applicant suffered from a medically/mentally
disabling condition while serving on active duty.



9.  There is no evidence showing that the applicant applied to the Army
Discharge Review Board (ADRB) for an upgrade to his discharge within its
15-year statute of limitations.

10.  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 at
any time after the charges have been preferred, submit a request for
discharge for the good of the service in lieu of trial by court-martial.
An UOTHC discharge is normally considered appropriate for members separated
under this provision of the regulation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have received a medical
discharge has been carefully considered.  However, his records are void of
any medical documents showing he suffered from a medically/mentally
disabling condition at the time of his discharge.  Therefore, 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 counsel, he voluntarily requested
discharge 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.

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 9 August 1989; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
8 August 1992.  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

___BPI __  ___DWS_  ___EEM    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.




                                  _____Bernard P. Ingold____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050005114                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-12-06                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1989/08/09                              |
|DISCHARGE AUTHORITY     |AR635-200 . . . . .                     |
|DISCHARGE REASON        |Chapter 10                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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