RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 January 2006
      DOCKET NUMBER:  AR20050006471


      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. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Kenneth L. Wright             |     |Chairperson          |
|     |Mr. Dale E. DeBruler              |     |Member               |
|     |Mr. Qawiy A. Sabree               |     |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 discharge be upgraded to an
honorable discharge.

2.  The applicant states, in effect, that he was told that his discharge
would be a general discharge under honorable conditions, yet his discharge
was different when he received it.  The applicant states, that a Judge
Advocate General (JAG) Officer, which advised him to take the discharge,
poorly advised him.  He was denied an exit physical and was not given
enough time to seek his wife’s advice.  He was rushed through the discharge
and his lawyer did not help him.

3.  The applicant provides no additional documents in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 13 April 1988.  The application submitted in
this case is dated
21 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 enlisted in the Regular Army on
31 March 1981, with 4 months and 17 days of prior inactive military
service.  He completed the required training and was awarded military
occupational specialty 76V10 (Material Storage and Handling Specialist).
On 1 March 1985, the applicant reenlisted for 6 years, after serving 4
years, 3 months and 17 days of honorable active service.  The highest grade
attained was pay grade E-5.

4.  On 16 March 1988, court-martial charges were preferred against the
applicant for engaging in a personal or social relationship with a trainee
on 23 January 1988, for engaging in a personal or social relationship with
a trainee by socializing, drinking alcoholic beverages, and engaging in
sexual intercourse with a trainee in an off-post hotel, and engaging in a
personal or social relationship with a trainee on 16 January 1988 by
meeting the trainee at a hotel and driving through the local area with the
trainee, in violation of Article 92, UCMJ.  Charge II consisted of two
specifications of maltreatment of trainees, by making repeated offensive
comments of a sexual nature, in violation of Article 93, UCMJ.  He was also
charged with having sexual intercourse with a trainee, a woman not his
wife, in violation of Article134, UCMJ.

5.  On 21 March 1988, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation action, the effects of
a discharge Under Other Than Honorable Conditions (UOTHC) and of the rights
available to him.  The applicant voluntarily requested discharge for the
good of the service, in lieu of trial by court-martial.  In his request for
discharge, he acknowledged that he was guilty of the charge against him or
of a lesser-included offense therein contained which also authorizes the
imposition of a bad conduct or dishonorable discharge.  He further stated
that under no circumstances did he desire further rehabilitation, for he
had no desire to perform further military service.  He also stated 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.  The applicant elected not to make a statement in his own behalf and
waived his separation physical.

6.  On 12 April 1988, the separation authority approved the applicant’s
request for discharge, directed that he be reduced to the lowest enlistment
grade and that he be discharged for the good of service under the
provisions of Army Regulation 635-200, Chapter 10 with a Discharge
Certificate Under Other Than Honorable Conditions.  On 13 April 1988, the
applicant was discharged accordingly.  The separation document (DD Form
214) he was issued confirms he completed
7 years and 13 day of creditable active military service.

7.  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.

8.  On 21 February 1990, the Army Discharge Review Board denied the
applicant’s request for an upgrade of his discharge.

9.  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 contentions of the applicant were carefully considered and found to
be insufficient in merit.  The applicant has not presented any evidence nor
is there any evidence in his available record, which supports his
allegations.

2.  The evidence of record confirms that the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. The evidence of record shows that the applicant was represented
by legal counsel who was a member of the Judge Advocate General Corps.  The
applicant was advised by his counsel on the ramification of the charges
against him and the possible maximum punishment.  After consulting with
legal counsel, the applicant voluntarily and in writing, requested a
discharge for the good of service, in lieu of trial by court-martial.  In
doing so, the applicant admitted to the offenses for which he was charged.
All requirements were met, the rights of the applicant were fully protected
throughout the separation process and his discharge accurately reflects his
overall record of service.  There is no evidence in his military record
that shows that his rights were violated during his discharge 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 exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 21 February 1990.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 20 February 1993.  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 file in this case.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__KLW__  __DED__  __QAS __  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.




                                  ____Kenneth L. Wright____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050006471                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060110                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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