RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           1 December 2005
      DOCKET NUMBER:  AR20050006598


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Meixell                  |     |Chairperson          |
|     |Ms. Maribeth Love                 |     |Member               |
|     |Mr. Richard Sayre                 |     |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 under other than
honorable conditions be upgraded.

2.  Although the applicant's letter indicates he is requesting
reconsideration of the previous consideration of his case by the Army Board
for Correction of Military Records (ABCMR) in Docket Number AR2003088724 on
23 October 2003, his contentions relate to his discharge and not the issues
considered in Docket Number AR2003088724 on 23 October 2003.

3.  The applicant states, in effect, that his attempts to obtain copies of
documents in his military records to defend himself have been denied, that
he never signed or agreed to anything, and that the Army has not been able
to provide him with such documents with signatures.  He contends he became
a victim of a horrible discharge due to command influence and the failure
of correct administrative procedures and due process.  He also states his
offense was only a retracted claim of cashing money orders in the amount of
$300, that he was on leave when he was reported as being absent without
leave (AWOL), that he never agreed to any discharge in lieu of a court-
martial, and that he was told he would be discharged with a general
discharge.  He further states the military stole $1200 he invested in the
GI Bill and his belongings he left in the barracks which were estimated at
a value of $3000.

4.  The applicant provides a letter, dated 24 March 2005 and an undated
statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 18 February 1998.  The letter submitted in this case is dated
24 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 limitation 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 entered active duty on 12 February 1993 and trained as a
combat engineer.  He served in Korea from 12 June 1993 through 11 June
1994.

4.  The applicant went AWOL on 19 June 1995 and returned to military
control on
17 October 1997.  On 21 October 1997, charges were preferred against the
applicant for the AWOL period.  Trial by special court-martial was
recommended.

5.  On 23 October 1997, the applicant consulted with counsel and requested
discharge in lieu of trial by court-martial under the provisions of Army
Regulation 635-200, chapter 10.  He indicated in his request that he
understood he might be discharged under conditions other than honorable and
furnished an Under Other than Honorable Discharge; that he might be
ineligible for many or all benefits administered by the Veterans
Administration; that he would be deprived of many or all Army benefits; and
that he might be ineligible for many or all benefits as a veteran under
both Federal and State law.  He also acknowledged that he might expect to
encounter substantial prejudice in civilian life because of an Under Other
than Honorable Discharge.  He elected not to submit a statement on his own
behalf.

6.  On 29 January 1998, the separation authority approved the applicant's
request for discharge and directed that he be furnished a discharge under
other than honorable conditions.

7.  Accordingly, the applicant was discharged under other than honorable
conditions on 18 February 1998 under the provisions of Army Regulation
635-200, chapter 10, in lieu of trial by court-martial.  He had served 2
years, 7 months, and 26 days of total active service with 850 days of lost
time due to AWOL.

8.  On 3 April 2002, the Army Discharge Review Board (ADRB) denied the
applicant's request for a general discharge.

9.  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,
submit a request for discharge for the good of the service in lieu of trial
by court-martial.  The request may be submitted at any time after charges
have been preferred and must include the individual's admission of guilt.
Although an honorable or general discharge is authorized, a discharge under
other than honorable conditions is normally considered appropriate.

10.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality
of the member’s service generally has met the standards of acceptable
conduct and performance of duty for Army personnel (emphasis added), or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.

11.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.

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 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 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 date of application to the ABCMR is within three years of the
decision of the ADRB; therefore, the applicant has timely filed.

2.  The applicant's contentions relate to evidentiary and procedural
matters that could have been addressed and conclusively adjudicated in a
court-martial appellate process.  However, the applicant voluntarily
requested discharge in lieu of trial by court-martial.

3.  The applicant’s voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial,
was administratively correct and in conformance with applicable
regulations.  He had an opportunity to submit a statement in which he could
have voiced his concerns and he failed to do so.

4.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.

5.  Since the applicant had 850 days of lost time, his record of service
was not satisfactory and did not meet the standards of acceptable conduct
and performance of duty for Army personnel.  Therefore, the applicant's
record of service is insufficiently meritorious to warrant a general or
honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

JM_____  ML______  _RS_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.


            ____John Meixell______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050006598                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051201                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19980218                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 10                   |
|DISCHARGE REASON        |For the good of the service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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