RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 OCTOBER 2006
      DOCKET NUMBER:  AR20060000814


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Carmen Duncan                 |     |Chairperson          |
|     |Mr. Jerome Pionk                  |     |Member               |
|     |Ms. Rea 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 records be corrected by upgrading his
discharge.

2.  The applicant states that he was having severe family problems with his
wife and mother, which is what started his problems with the Army.  His
mother became very sick and he needed to go home.  He provided medical
proof that showed his mother needed him at home and asked for a hardship
discharge.  His first sergeant started the process but was dragging his
feet.  After 4 months he left Fort Hood, Texas, without permission and went
home to Alabama to check on his mother.  After approximately 2 weeks he
returned to Fort Hood and asked for a hardship discharge.  Instead of a
hardship discharge, he was given paperwork for an under other than
honorable conditions discharge and told him to sign them or be court-
martialed.  He needed to get home to his mother and had no time to go
through a court-martial.  He was forced to sign the discharge.  He served
over a year honorably with no problems, and wanted to continue his military
career, but his mother comes first.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 12 June 1996.  The application submitted in this case is dated
30 December 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 enlisted in the Regular Army on 9 February 1995, for a
period of 3 years.



4.  On 20 November 1995, the applicant accepted nonjudicial punishment
under the provisions of Article 15, Uniform Code of Military Justice, for
being absent without leave (AWOL) from 13 October 1995 to 17 October 1995.
His punishment was reduction to Private E-1 and a forfeiture of pay.

5.  On 14 March 1996, his commander preferred court-martial charges against
him for being AWOL from 27 December 1995 to 12 March 1996.

6.  On 14 March 1996, after consulting with legal counsel, the applicant
voluntarily submitted a request for discharge for the good of the service,
under the provisions of Army Regulation 635-200, Chapter 10, in lieu of
trial by court-martial.  He acknowledged that he understood that he may be
deprived of many or all Army benefits and that he may be ineligible for
many or all benefits administered by the Veterans Administration, and that
he may be deprived of his rights and benefits as a veteran under both
Federal and State law.  He also acknowledged that he understood the effects
of receiving an under other than honorable conditions (UOTHC) discharge.

7.  On 14 March 1996, his unit commander recommended approval of his
discharge request and recommended he be issued an under other than
honorable discharge.

8.  On 21 May 1996, the appropriate separation authority approved the
applicants discharge request and directed the issuance of an under other
than honorable conditions discharge.

9.  On 12 June 1996, the applicant was discharged under the provisions of
Army Regulation 635-200, Chapter 10, for the good of the service, in lieu
of court-martial.  His DD Form 214 indicates he had 1 year, 1 month and 18
days of creditable service and had 76 days of lost time.

10.  On 4 August 1998, the Army Discharge Review Board denied the
applicant's petition to upgrade his discharge.

11.  Army Regulation 635-200, then in effect, set forth the basic authority
for the separation of enlisted personnel.  Chapter 10 of that regulation
provided, in pertinent part, that a member who had committed an offense or
offenses for which the authorized punishment included a punitive discharge
could at any time after the charges had been preferred; submit a request
for discharge for the good of the service in lieu of trial by court-
martial.  At the time of the applicant’s separation, the regulation
provided for the issuance of a discharge under other than honorable
conditions.

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 Army Discharge Review Board (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
Army Board for Correction of Military Records (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 applicant’s administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
error which would tend to jeopardize his rights.

2.  The applicant's contention that he was forced to sign discharge papers
is without merit.  The applicant voluntarily requested separation under
Army Regulation 635-200, Chapter 10, for the good of the service, to avoid
trial by court-martial.

3.  There is no evidence in the available records nor did the applicant
provide documentation that he had requested a hardship discharge prior to
his going AWOL or when he returned.

4.  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 that requirement.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 4 August 1998.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 3 August 2001.  However,
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

___CD __  ___JP___  ___RN __  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.




                                  _____Carmen Duncan________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000814                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061024                                |
|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.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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