RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 December 2005
      DOCKET NUMBER:  AR20050006530


      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. Ted S. Kanamine               |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Ms. Jeanette B. McPherson         |     |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 trying to help his wife
get out of prison.  He felt that it was his duty to help her.

3.  The applicant provides five awards certificates in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 17 April 1985.  The application submitted in
this case is dated
13 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
2 November 1983.  He completed the required training and was awarded
military occupational specialty 12B10 (Combat Engineer).  The highest grade
attained was pay grade E-3.

4.  On 26 February 1985, court-martial charges were preferred against the
applicant for being absent without leave from 14 December 1984 to 15
February 1985.

5.  On 27 February 1985, 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.

6.  On 14 March 1985, 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 17 April 1985, the
applicant was discharged accordingly.  The separation document (DD Form
214) he was issued confirms he completed 1 year, 3 months, and 15 days 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.  There is no indication that the applicant applied to the Army Discharge
Review Board for an upgrade of his discharge within its 15-year statute of
limitations.

DISCUSSION AND CONCLUSIONS:

1.  The contention of the applicant was carefully considered and found to
have insufficient merit in this case.

2.  The applicant’s good character and post service conduct were carefully
considered.  However, although his post service conduct is admirable, this
factor alone is not sufficiently mitigating to warrant an upgrade of his
discharge.

3.  The evidence of record confirms that the applicant was charged with the
commission of an offense 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.  All
requirements of law and regulations were met, the rights of the applicant
were fully protected throughout the separation process, and his discharge
accurately reflects his overall record of short and 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 should have discovered the alleged error or
injustice now under consideration on 17 April 1985, therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
16 April 1988.  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

__TSK __  __RLD __  __JBM __  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.




                                  ____Ted S. Kanamine_________
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050006530                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051222                                |
|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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