RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      25 July 2006
      DOCKET NUMBER:  AR20060000907


      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             |
|     |Mr. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Allen L. Raub                 |     |Chairperson          |
|     |Ms. LaVerne Douglas               |     |Member               |
|     |Ms. Peguine M. Taylor             |     |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 discharge under other than honorable
conditions be upgraded to a more favorable discharge.

2.  The applicant states that he was told that his discharge would be
upgraded 2 years after his discharge; however, he has recently learned that
he had to apply to have it upgraded.

3.  The applicant provides a copy of his report of separation (DD Form
214).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 25 August 1989.  The application submitted in this case is
dated 11 January 2006.

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.  He was born on 27 August 1962 and enlisted in the Regular Army on
10 February 1987 for a period of 3 years and training as an infantryman.
He completed his one-station unit training (OSUT) at Fort Benning, Georgia
and was transferred to Hawaii on 27 May 1987.  He was advanced to the pay
grade of E-3 on 1 October 1987.

4.  On 19 July 1989, the commander initiated a suspension of favorable
personnel actions (FLAG) against the applicant and indicated that he was
pending nonjudicial punishment.

5.  On  25 July 1989, the commander initiated another FLAG and indicated
that the applicant was pending trial by special court-martial.

6.  The facts and circumstances surrounding the applicant’s discharge are
not present in the available records.  However, his records do contain a
duly constituted report of separation (DD Form 214), which shows that he
was discharged at the Presidio of San Francisco, California on 25 August
1989, under the provisions of Army Regulation 635-200, chapter 10, in lieu
of trial by court-martial.  He had served 2 years, 6 months and 20 days of
total active service.

7.  There is no evidence in the available records to show that he ever
applied to the ADRB for an upgrade of his discharge within that board’s 15-
year statute of limitations.

8.  Information contained in his records shows that the applicant
authorized the release of a copy of his DD Form 214 to a Senior Probation
Officer of the First Circuit Court in Honolulu, Hawaii on 21 September
1992.

9.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge
for the good of the service in lieu of trial by court-martial.  A condition
of submitting such a request is that the individual concerned must admit
guilt to the charges against them or of a lesser included offense which
authorizes the imposition of a bad conduct or dishonorable discharge and
they must indicate that they have been briefed and understand the
consequences of such a request as well as the discharge they might receive.
 A discharge under other than honorable conditions is normally considered
appropriate.  There have never been any provisions for an automatic upgrade
of such discharges.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that
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.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a
trial by court-martial, he voluntarily requested a discharge for the good
of the service in hopes of avoiding a punitive discharge and having a
felony conviction on his records.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 August 1989; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 24 August 1992.  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

__LD____  _ALR ___  __PMT__  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.




                                  __       Allen L. Raub __________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060725                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000 Administrative Discharge       |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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