RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 August 2006
      DOCKET NUMBER:  AR20050017364


      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. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. Dean A. Camarella             |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |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, in effect, that his conduct and efficiency
ratings were good until he had problems with his marriage and his first
sergeant.

3.  The applicant continues that he has been a model citizen since his
discharge and that he actively participates in his church, has maintained
continuous employment, and has not participated in criminal behavior.

4.  The applicant provides a Summary of Events and Timeline in support of
this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 11 February 1988, the date of his discharge from active
duty.  The application submitted in this case is dated 15 November 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 Regular Army on
11 November 1985 for a period of three years.  Records show that he
completed basic and advanced individual training and that the highest rank
he attained while serving on active duty was private/pay grade E-2.

4.  The applicant’s records do not show any significant acts of valor
during his military service.




5.  On 19 November 1986, nonjudicial punishment was imposed against the
applicant for failure to obey a lawful order, making and uttering a check
for the amount of 30 dollars and failing to maintain sufficient funds,
breaking restriction on 1 November 1986, and failure to go to his
prescribed place of duty on 1 November 1986.  His punishment consisted of
reduction to private/pay grade E-1, 7 days confinement (suspended) and
forfeiture of $167.00.

6.  Records show that the applicant was absent without leave (AWOL) during
the period 5 December 1986 through 1 December 1987.

7.  On 4 December 1987, the applicant knowingly, willingly and voluntarily
declared that he was AWOL during the period 5 December 1986 through
1 December 1987.  The applicant further acknowledged that he was making the
admission for the purpose of processing out of the Army and that he might
be given an under other than honorable conditions discharge.  The applicant
also declared that he was counseled on all of the legal and social
ramifications of such a discharge.

8.  The DD Form 214 (Certificate of Release form Discharge from Active
Duty) the applicant was issued at the time of his separation confirms he
completed a total of 1 year, 2 months, and 20 days of creditable active
military service and that he accrued 361 days of time lost due to AWOL.

9.  The applicant provided Summary of Events and Timeline which essentially
provides a historically background of the applicant's life during the
period July 1985 through December 1987.  The applicant states in his
timeline the military experiences of several members of his family.

10.  The applicant contends that in October of 1985 he was married and that
he discovered in July 1986 that his spouse was a bigamist.  The applicant
argues that this resulted in his failing of an examination during advanced
individual training.

11.  The applicant further argued that he had an ongoing personality
conflict with his first sergeant which resulted in additional duties and
more vigorous physical training.

12.  The applicant contends that he was advised by numerous individuals
that if he went AWOL for one year that he would be transferred directly to
Germany.

13.  The applicant concluded that at the time he returned to military
control he requested to stay on active duty and was told that he would
"lose at a court-martial and be discharged anyway."


14.  The applicant further concluded that he would like the opportunity to
correct a mistake that he made over twenty years ago and request that his
family's military history be taken into consideration.

15.  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.

16.  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.

17.  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.

18.  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 under other than honorable conditions
discharge should be upgraded because of the fact that he had marital
problems and problems with his first sergeant during his military service.

2.  The applicant's contentions regarding his post service achievements and
conduct were considered.  However, good post service conduct alone is not a
basis for upgrading a discharge.

3.  The applicant's record of service included nonjudicial punishment for
failure to obey a lawful order, making and uttering a bad check, breaking
restriction, and failure to go to his prescribed place of duty.  The
applicant's records further show that he had 361 days of lost time due to
AWOL.

4.  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 also renders his service
unsatisfactory.  Therefore, the applicant is not entitled to either a
general discharge or an honorable discharge.

5.  The evidence of record confirms the applicant's separation processing
was accomplished in accordance with the applicable regulation.  All
requirements of law and regulation were met, and his rights were fully
protected throughout the separation process.

6.  In order to justify correction of a military record the applicant must
show, 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.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 11 February 1988; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 10 February 1991.  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

_RTD___  _RMN____  _DAC__  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.




                                       Richard T. Dunbar_
                                            CHAIRPERSON



                                    INDEX

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


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