RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           22 November 2005
      DOCKET NUMBER:  AR20050006363


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Thomas A. Pagan               |     |Chairperson          |
|     |Mr. Eric N. Anderson              |     |Member               |
|     |Mr. Joe R. Schroeder              |     |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, an upgrade of his under other than
honorable conditions (UOTHC) discharge.

2.  The applicant states, in effect, his discharge was too harsh based on
his prior honorable military service.  He claims this was the only blemish
on his military record, and his overall record of service supports an
honorable discharge.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 13 July 1990, the date of his discharge.  The application
submitted in this case is dated 20 April 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 that he initially enlisted in the Regular
Army and entered active duty on 15 November 1983.  He was trained in and
awarded military occupational specialty (MOS) 16S (MANPADS Crewman).  The
record further shows that he reenlisted on 17 October 1986 and again on 21
October 1988.

4.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows he
was promoted to sergeant (SGT) on 8 November 1988, and that this was the
highest rank he attained while serving on active duty.  Item 9 (Awards,
Decorations and Campaigns) shows that he earned the following awards during
his active duty tenure:  Army Service Ribbon; Overseas Service Ribbon; Army
Good Conduct Medal (2nd Award); Army Commendation Medal; Driver and
Mechanic Badge with W BAR; Expert Qualification Badge with Pistol and Rifle
Bars; and Marksman Qualification Badge with Grenade Bar.


5.  The applicant’s record is void of a Charge Sheet (DD Form 458)
identifying the specific charges preferred against the applicant.  However,
the record does include a request for discharge signed by the applicant and
his legal counsel on 5 May 1990.

6.  The applicant’s discharge request shows that based on his contemplated
trial by a special court-martial empowered to adjudge a bad conduct
discharge, defense counsel advised the applicant of the basis for the
trial, the maximum permissible punishment authorized under the Uniform Code
of Military Justice (UCMJ), the possible effects of an UOTHC discharge, and
of the procedures and rights available to him.  Subsequent to this
counseling, the applicant requested discharge for the good of the service
in lieu of trial by court-martial.

7.  In his request for discharge, the applicant also indicated that he
understood that by requesting discharge, he was admitting guilt to the
charge(s) against him, or of a lesser included offense, that also
authorized the imposition of a bad conduct or dishonorable discharge.  He
further acknowledged he understood 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.  The applicant
stipulated that he did not desire further rehabilitation because he had no
desire to perform further military service.

8.  On 12 June 1990, the separation authority approved the applicant’s
request for discharge and directed that he receive an UOTHC discharge.  On
13 July 1990, the applicant was discharged accordingly.  The DD Form 214 he
was issued confirms he completed a total of 6 years, 7 months, and 29 days
of creditable active military service.

9.  On 22 June 1995, the Army Discharge Review Board (ADRB) voted to deny
the applicant’s request for an upgrade of his discharge after concluding
that his discharge was proper and equitable.

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.  A
discharge UOTHC is normally considered appropriate.

11.  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 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 ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the Board 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 contention that his overall record of service supports
an honorable discharge was carefully considered.  However, there is
insufficient evidence to support this claim.

2.  The applicant’s record does not contain a court-martial charge sheet or
any other documentary evidence that indicates the offense(s) the applicant
was charged with that resulted in his request for discharge.  However, he
clearly voluntarily elected to be administratively discharged in order to
avoid prosecution that could have resulted in his receiving a punitive
discharge.

3.  The evidence of record does confirm that the applicant was charged with
the commission of an offense(s) 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.  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.

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 reviewed by the ADRB on 22 June 1995.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 21 June 1998.  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 file in this case.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___TAP     __ENA __  __JRS___  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.




            ____Thomas A. Pagan_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050006363                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/11/22                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1990/07/13                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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