RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 November 2005
      DOCKET NUMBER:  AR20050008119


      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             |
|     |Mrs. Victoria A. Donaldson        |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Mr. Larry J. Olson                |     |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 that his under other than honorable conditions
discharge be upgraded to an honorable discharge.

2.  The applicant states he was arrested on a misdemeanor in a civilian
court but that he was not charged.  The applicant further states that he
was separated because he was "gone too long" from the military.  The
applicant concludes that he served two tours and that his first tour was
honorable.

3.  The applicant did not provided any documentary evidence in support of
this case.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 6 October 1987, the date of his discharge from active
duty.  The application submitted in this case is dated 15 May 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 he enlisted in the United States Army
Reserve on 4 April 1980 for a period of three years.  He was trained in,
awarded, and served in military occupational specialty (MOS) 62B10
(Construction Equipment Mechanic) and achieved the rank of private first
class/pay grade E-3.  The applicant enlisted in the Regular Army on 21 May
1986, completed advanced individual training and was awarded the MOS 73C10
(Finance Specialist).  The highest rank he attained while serving on active
duty was private/pay grade
E-1.

4.  The applicant’s record documents no acts of valor, significant
achievement or service warranting special recognition.



5.  The applicant's DA Form 20 (Enlistment Qualification Record) shows in
item 21 (Time Lost) the entries "860822/860922/32/IMPRMT" [22 August 1986
through 22 August 1986, 32 days, Imprisonment] and "860923/870820/332 AWOL"
[23 September 1986 through 20 August 1987, 332 days/absent without leave].

6.  On 26 August 1987, charges were preferred against the applicant for
being absent without leave (AWOL) during the period 23 September 1986
through 21 August 1987.

7.  On 27 August 1987, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
maximum permissible punishment authorized under the Uniform Code of
Military Justice (UCMJ), the possible effects of an under other than
honorable conditions discharge, and of the procedures and rights that were
available to him.  Subsequent to receiving this legal counsel, the
applicant voluntarily requested discharge for the good of the service, in
lieu of trial by court-martial.

8.  In his request for discharge, the applicant indicated that he
understood that by requesting discharge, he was admitting guilt to the
charge 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.

9.  On 27 August 1987, the separation authority approved the applicant’s
request for discharge and directed that he receive an under other than
honorable conditions discharge.  On 6 October 1987, the applicant was
discharged accordingly. The DD Form 214 he was issued confirms he completed
a total of 7 months and 10 days of creditable active military service and 5
years, 9 months, and 8 days of prior inactive service.  This form also
shows the applicant accrued 364 days of time lost due to AWOL and
confinement.

10.  There is no indication that the applicant applied to the Army
Discharge Review Board for an upgrade of his discharge within its 15-year
statue of limitations.

11.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-
martial.  A discharge under other than honorable conditions is normally
considered appropriate.

12.  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.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded to a general
under honorable conditions discharge because he was a good Soldier that
served honorably.

2.  Lacking evidence to the contrary, the applicant's request for
separation under the provisions of chapter 10 of Army Regulation 635-200
for the good of the service to avoid trial by court-martial was voluntary,
administratively correct, and in compliance with applicable regulations.

3.  There is no evidence and the applicant has not provided sufficient
evidence which shows his discharge processing was not proper and equitable
in accordance with the regulations in effect at the time, that all
requirements of law and regulations were not met, or the rights of the
applicant were not fully protected throughout the separation process.
Absent such evidence, regularity must be presumed in this case.

4.  The applicant's record of service shows that he received he was held in
civilian confinement for 32 days and that he was AWOL for 332 days.

5.  Based on this record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  This misconduct and lost time also renders his service
unsatisfactory. Therefore, he is not entitled to either a general discharge
or an honorable discharge.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 October 1987; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 5 October 1990.  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

_JRS____  __ENA___  __TAP__  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                 |AR20050008119                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051122                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |2005/10/06                              |
|DISCHARGE AUTHORITY     |AR 635-200 . . . . .                    |
|DISCHARGE REASON        |Chap 10                                 |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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