RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 December 2005
      DOCKET NUMBER:  AR20050007134


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Hise                    |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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, characterized as
under other than honorable conditions (UOTHC), be upgraded.

2.  The applicant states that he was 22 years old at the time of his
discharge and made mistakes and now regrets the mistakes he made.

3.  The applicant provides no documentation in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 10 September 1985, the date of his discharge.  The application
submitted in this case is dated 8 March 2005, but was received on 8 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 military records show he entered active duty on
19 January 1983, as a light weapons infantryman (11B), at the age of
20 years, 1 month, and 1 day.  He was promoted to pay grade E-2 on 19 July
1983.

4.  On 23 October 1984, he was punished under Article 15, for being absent
without leave (AWOL) from 6 August to 5 September 1984.  His punishment
consisted of a reduction to pay grade E-1, forfeiture of pay, and 45 days
restriction and extra duty. 

5.  Charges were preferred against the applicant on 17 May 1985, for being
AWOL from 29 March to 8 May 1985.  

6.  Item 21 (Time Lost), of his DA Form 2-1 (Personnel Qualification
Record), shows that he was AWOL from 7 August to 4 September 1984 (29 days)
and from 29 March to 7 May 1985 (40 days).


7.  On 17 May 1985, he consulted with counsel and voluntarily requested
discharge, for the good of the service, in lieu of trial by court-martial,
under the provisions of Army Regulation 635-200, chapter 10.  In doing so,
he acknowledged that he might encounter substantial prejudice in civilian
life and might be ineligible for many or all benefits administered by the
Veterans Administration (VA) if an UOTHC discharge were issued.  He waived
his rights and elected not to submit a statement in his own behalf.

8.  On 27 August 1985, the separation authority approved the applicant's
request for discharge and directed that he be furnished an UOTHC and that
he be reduced to the lowest enlisted grade. 

9.  The applicant was discharged on 10 September 1985.  He had a total of
2 years, 5 months, and 13 days of creditable service and had 67 days of
lost time due to AWOL.

10.  There is no evidence that the applicant applied to the Army Discharge
Review Board (ADRB) for an upgrade of his discharge within its 15-year
statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for 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 under other than honorable
conditions is normally considered appropriate.

12.  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.

13.  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.  Whenever there is doubt, it is to be
resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, for the good of the service, to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.  There is no indication that the
request was made under coercion or duress.

2.  The type of separation directed and the reasons for that separation
appear to have been appropriate considering all the available facts of the
case.

3.  The applicant has provided insufficient evidence to show that his
discharge was unjust.  He also has not provided evidence sufficient to
mitigate the character of his discharge.

4.  The applicant contends that he made mistakes and regrets the mistakes
he made; however, the evidence clearly shows that he was 20 years, 1 month,
and 1 day of age on the date of his entry on AD and was 21 years, 8 months,
and 22 days of age at the time of his discharge.   There is no evidence
that the applicant was any less mature than other Soldiers of the same or
of a younger age who served successfully and completed their term of
service.

5.  There is no evidence in the applicant's records, and the applicant has
provided none, to show that he applied for an upgrade of his discharge to
the ADRB within its 15-year statute of limitations.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 September 1985; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 9 September 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

__JH___  __RB____  __JM____  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.




                                  ___    James Hise________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050007134                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051220                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19850910                                |
|DISCHARGE AUTHORITY     |AR 635-200, chapter 10                  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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