RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        31 August 2006
      DOCKET NUMBER:  AR20060001081


      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. William D. Powers             |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |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 to honorable or
general.

2.  The applicant states, in effect, that his discharge characterized as
UOTHC should be upgraded to honorable or general.

3.  The applicant provides an additional statement in support of his
request.  He states that he is writing this letter in the hopes of
explaining the circumstances surrounding his discharge in order to request
consideration to reenter the Michigan Army National Guard (MIARNG) and
serve his state and country once again.  He would first like to mention
that all he ever wanted to do all his life was to join the military.  He
had two uncles, a second cousin, and a great uncle that had served in the
US Army.  So upon graduation, he started his dream of service by joining
the MIARNG.  During his time in the MIARNG, he met the woman he would
eventually marry.  So, in order to provide for his future family, he signed
up for full-time service.

4.  He spent the first year of service in South Korea, a hardship tour.
Upon returning to the states, he was married to the woman he had left
behind and went on to Fort Carson, Colorado, for his next duty station.  He
was placed in A
Company, 4th Engineers.  He thought everything was going just fine in his
life.  He had just passed the E-5 board and had the gift of his second son;
which is when everything fell apart.  He found out that his wife was having
an affair with a Soldier from C Company, 4th Engineers.  He proceeded to go
through his chain of command and even to the Post Chaplain.  He wanted to
find a way to get reassigned somewhere else and even tried to reenlist in
order to leave Fort Carson right away.  Well, orders came back extending
his stay at Fort Carson for four more months.

5.  He states that he became faced with the ultimatum of choosing between
his family or his military career.  He was told he could not be a single
parent and did not want to put his sons through the pain of a divorce so he
painfully chose his family.  This was the situation behind his AWOL which
was during that turbulent time.  Now, after ten years of regretting what he
had done, he is at a point in his life where he knows he needs to try to
make amends for what happened.  He truly believes that every person should
be allowed a second chance.  That is all he asks for so that he a can make
it up to his country, his family, and his fellow Soldiers.


6.  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 or injustice
which occurred on 26 July 1990, the date of his discharge.  The application
submitted in this case is dated 1 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.  The applicant's military records show he entered active duty on
5 August 1986, as a heavy construction equipment operator (62E), with prior
military service in the MIARNG.  He was promoted to sergeant (SGT/E-5)
effective 1 June 1989.

4.  The applicant’s charges are unavailable for review.

5.  Item 21 (Time Lost), of his DA Form 2-1 (Personnel Qualification Record
-
Part ll), shows that he was absent without leave (AWOL) from 6 March 1990
to 15 May 1990 (71 days).

6.  On 18 May 1990, 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 a discharge characterized as UOTHC were
issued.  He waived his rights and elected not to submit a statement in his
own behalf.

7.  On 4 June 1990, the separation authority approved the applicant's
request for discharge and directed that he be furnished a discharge
characterized as UOTHC and that he be reduced to the lowest enlisted
grade. 

8.  The applicant was discharged in the rank/pay grade, Private/E-1, on
26 July 1990.  He had a total of 3 years, 9 months, and 12 days of net
active service and 71 days of time lost due to AWOL.

9.  On 23 August 2002, the Army Discharge Review Board denied the
applicant's petition to upgrade his discharge.

10.  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.

11.  Army Regulation 635-200, paragraph 3-7a, 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.

12.  Army Regulation 635-200, paragraph 3-7b, 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, 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.  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 voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, for the good of the service, in
lieu of trial by court-martial, was administratively correct and in
conformance with applicable regulations  There is no indication that the
applicant's request for discharge 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.  It is evident that court-martial charges were preferred against the
applicant; however, these documents are unavailable for review and the
applicant failed to provide this information to the Board. 

4.  The applicant has provided no evidence to show that his discharge was
unjust.  He also has not provided any evidence to mitigate the character of
his discharge.

5.  The applicant's letter explaining the reasons and circumstances for
going AWOL and his request for consideration to reenter the MIARNG has been
considered.  However, this evidence is insufficient by itself to mitigate
the seriousness of his offenses and to support his request for an upgrade
of his discharge characterized as UOTHC.

6.  In order to justify correction of a military record, the applicant must
show, to the satisfaction of the Board, or it must otherwise 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 exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 23 August 2002. 
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 22 August 2005.  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

_JCR____  _WDP __  _KSJ____  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.




                                  _____William David Powers___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001081                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060831                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19900726                                |
|DISCHARGE AUTHORITY     |AR 635-200, chap 10                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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