RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         8 November 2005
      DOCKET NUMBER:  AR20050006118


      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. Stanley Kelley                |     |Chairperson          |
|     |Ms. Diane J. Armstrong            |     |Member               |
|     |Ms. Delia R. Trimble              |     |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.

2.  The applicant states, in effect, that he received a service-connected
injury while stationed at Fort Kolbe, Panama.  He claims to have just
signed forms to receive compensation for this injury and was awaiting a
medical discharge.  He states that one week prior to receiving his medical
discharge, the first sergeant and captain searched his room and
administered a drug test.  After being tested, he was told to return to his
room and he would be informed of the results.  He claims that two days
after the drug test, the results came back showing he had tested positive
for cocaine.  At that time, he asked to be retested, but was told no.  He
further states that he never had drug or alcohol problems during the time
he served, and he believes the drug test was positive as a result of
prescribed medication (codine) he was taking for his service connected
injuries.  He also states he received an Article 15 and told he had a
choice of doing five years at Fort Leavenworth or separating under the
provisions of chapter 10, Army Regulation 635-200, in lieu of court-
martial, with an UOTHC discharge.

3.  The applicant provides a self-authored statement in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 17 September 1985.  The application submitted in this case
is dated 29 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 12 June 1984.  He was trained in, awarded, and served in military
occupational specialty (MOS) 13B (Cannon Crewman).  His record documents no
acts of valor, significant achievement or service warranting special
recognition, and it confirms that the highest rank he attained while
serving on active duty was private/E-2.

4.  On 20 May 1985, a Physical Evaluation Board (PEB) found the applicant
was physically unfit for further service and recommended his separation
with severance pay based on a 10 percent disability rating for a knee
impairment that existed prior to service, but was aggravated by service.
The applicant’s discharge was approved for 1 August 1985.

5.  On 13 June 1985, the applicant departed absent without leave (AWOL)
from his unit.  He remained away for 12 days until returning to military
control on
25 June 1985.

6.  The applicant’s record confirms three court-martial charges were
preferred against him for violations of Articles 86, 92, and 112a of the
Uniform Code of Military Justice (UCMJ).  Charge I was for violating
Article 86 of the UCMJ by being AWOL from on or about 13 June through on or
about 25 June 1985.  Charge II was for violating Article 92 of the UCMJ by
failing to obey a lawful order from a superior commissioned officer by
wrongfully allowing visitors in his room on 26 May 1985.  Charge III was
for violating Article 112a of the UCMJ by the wrongful use of some amount
of cocaine on or about 26 May 1985.

7.  On 19 August 1985, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
effects of an UOTHC discharge and of the 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.  In his request for discharge, the applicant acknowledged that he
was admitting guilt to the charges against him, or of a lesser included
offense therein which authorizes the imposition of a bad conduct or
dishonorable discharge.  He further confirmed that under no circumstances
did he desire further rehabilitation because he had no desire to perform
further service.  He also also acknowledged his understanding that if his
discharge request was approved, 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 that he could be deprived
of his rights and benefits as a veteran under both Federal and State law.
He further indicated that he understood that he could encounter substantial
prejudice in civilian life by reason of an UOTHC discharge.
8.  On 28 August 1985, the separation authority approved the applicant’s
request for discharge and directed that he be reduced to the lowest
enlisted grade, and that he receive an UOTHC discharge.  On 17 September
1985, the applicant was discharged accordingly.  The DD Form 214 he was
issued confirms he completed a total of 1 year and 23 days of creditable
active military service

9.  On 17 July 1989 the Army Discharge Review Board denied the applicant's
petition to upgrade his discharge.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) establishes the Army Physical Disability Evaluation System
(PDES) according to the provisions of chapter 61, Title 10, United States
Code and Department of Defense Directive (DODD) 1332.18.  It sets forth
policies, responsibilities, and procedures that apply in determining
whether a Soldier is unfit because of physical disability to reasonably
perform the duties of his or her office, grade, rank, or rating.  Chapter 4
contains guidance on the eligibility for disability evaluation.  It states,
in pertinent part, that Soldiers charged with an offense under the UCMJ
that could result in dismissal or punitive discharge, may not be referred
for, or continue disability processing.

11.  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.

12.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the 3 year limit on filing to the
Army Board for Correction of Military Records (ABCMR) should commence on
the date of final action by the ADRB.  In complying with this decision, the
ABCMR has adopted the broader policy of calculating the 3-year time limit
from the date of exhaustion in any case where a lower level administrative
remedy is utilized.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have his UOTHC discharge upgraded to an
honorable discharge and the supporting statement he submitted were
carefully considered.  However, there is an insufficient evidentiary basis
to support granting the requested relief.

2.  Although the applicant’s disability separation with severance pay had
been recommended by a PEB, by regulation Soldiers charged with an offense
under the UCMJ that could result in dismissal or punitive discharge, may
not be referred for, or continue disability processing.  In this case, 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 in lieu
of trial by court-martial.

3.  The record further confirms all requirements of law and regulation were
met and that the rights of the applicant were fully protected throughout
the separation process, and his discharge was appropriate based on his
misconduct and accurately reflects his overall record of undistinguished
service.

4.  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.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 17 July 1989.  As
a result, the time for the applicant to file a request for correction or
any error or injustice to this Board expired on 16 July 1992.  However, 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

___SK  __  ___DJA _  ___DRT_  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.




                                  _____Stanley Kelley______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050006118                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-11-08                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1985/09/17                              |
|DISCHARGE AUTHORITY     |AR 635-200, Ch 10 . . . . .             |
|DISCHARGE REASON        |For the good of the service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0200.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]