RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 September 2006
      DOCKET NUMBER:  AR20060001565


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Eric Andersen                 |     |Chairperson          |
|     |Ms. Rose Lys                      |     |Member               |
|     |Mr. Richard Murphy                |     |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 under other than
honorable conditions be upgraded.

2.  The applicant states, in effect, that he has two prior honorable
discharges.  He contends that he was hurriedly discharged without any type
of hearing or questions, that he was not informed what to do, and that he
was hit by a drunk driver in Germany, hospitalized, and then taken out of
the hospital without finding out what was wrong with him.  He also contends
that he cannot get medical treatment with this type of discharge.

3.  The applicant provides a copy of his discharge orders; a copy of his DD
Form 214 (Certificate of Release or Discharge from Active Duty); award
certificates for the Good Conduct Medal and the Army Achievement Medal; two
Honorable Discharge Certificates; two certificates of achievement; a DA
Form 2496 (Disposition Form), dated 17 December 1987; and two Standard
Forms (SF) 600 (Chronological Record of Medical Care), front and back,
dated October 1989.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 16 January 1990.  The application submitted in this case is
dated 13 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 enlisted on 8 May 1985 for a period of 3 years.  He
successfully completed basic training and advanced individual training in
military occupational specialty 19K (Abrams armor crewman).  On 17 February
1988, the applicant was honorably discharged for immediate reenlistment.
The applicant reenlisted on 18 February 1988 for a period of 2 years.  He
was honorably discharged on 15 August 1989 for immediate reenlistment.  He
reenlisted on 16 August 1989 for a period of 3 years.

4.  In support of his claim, the applicant provided two SFs 600 which shows
he was in an automobile accident on 15 October 1989 and treated for head
and back injuries.  The record also states the applicant was taken out of
the hospital by his commanding officer against medical advice.

5.  On 27 November 1989, charges were preferred against the applicant for
violating a lawful general regulation (operating a government vehicle
without a military license on and between 14 October 1989 and 15 October
1989), signing an official record with intent to deceive on or about 14
October 1989, operating a government vehicle while drunk and in a reckless
manner on or about
15 October 1989, and wrongfully appropriating military property (a vehicle
on or about 14 October 1989).  Trial by general court-martial was
recommended.

6.  On 5 December 1989, the applicant consulted with counsel and requested
discharge for the good of the service under the provisions of Army
Regulation 635-200, chapter 10.  He indicated in his request that he
understood he might be discharged under conditions other than honorable and
furnished an other than honorable discharge; that he might be ineligible
for many or all benefits administered by the Veterans Administration; that
he would be deprived of many or all Army benefits; and that he might be
ineligible for many or all benefits as a veteran under both Federal and
State law.  He also acknowledged that he might expect to encounter
substantial prejudice in civilian life because of an other than honorable
discharge.  He elected not to make a statement in his own behalf.

7.  On 15 December 1989, the separation authority approved the applicant's
request for discharge and directed that he be furnished a discharge under
other than honorable conditions.

8.  On 4 January 1990, the applicant signed a Statement of Option which
states, "I understand that I am not required to undergo a medical
examination for separation from active duty; however, I may request a
physical examination.  If I elect not to undergo a separation examination,
I also understand that my medical records will be reviewed by a physician
at the appropriate medical treatment facility; and if the review indicated
that an examination should be accomplished, I will be scheduled for
examination based on the results of the review.  I do not desire a
separation medical examination."  His medical records were reviewed by
competent medical authorities and it was determined that a medical
examination for separation was not required.

9.  Accordingly, the applicant was discharged under other than honorable
conditions on 16 January 1990 under the provisions of Army Regulation 635-
200, chapter 10, for the good of the service, in lieu of court-martial.  He
had served a total of 4 years, 8 months, and 9 days of total active
service.
10.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge within its 15-year statute of
limitations.

11.  Army Regulation 635-200 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,
submit a request for discharge for the good of the service in lieu of trial
by court-martial.  The request may be submitted at any time after charges
have been preferred and must include the individual's admission of guilt.
Although an honorable or general discharge is authorized, 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's contentions that he was hurriedly discharged without
any type of hearing or questions and that he was not informed what to do
relate to evidentiary and procedural matters that could have been addressed
and conclusively adjudicated in a court-martial appellate process.
However, the applicant voluntarily requested discharge in lieu of trial by
court-martial.

2.  Although the applicant contends that he was hospitalized in Germany and
taken out of the hospital without finding out what was wrong with him,
medical records provided by the applicant show he was treated for head and
back injuries that appear to be directly related to the misconduct for
which he was separated.  Evidence of record shows the applicant declined a
separation medical examination on 4 January 1990 and his medical records
were reviewed by competent medical authorities and it was determined that a
medical examination for separation was not required.

3.  A discharge is not upgraded for the sole purpose of obtaining
Department of Veterans Affairs benefits.

4.  The applicant’s voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial,
was administratively correct and in conformance with applicable
regulations.  He had an opportunity to submit a statement in which he could
have voiced his concerns and he failed to do so.

5.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.

6.  Since the applicant’s record of service included serious offenses that
led to referral of general court-martial charges, his record of service was
not satisfactory and did not meet the standards of acceptable conduct and
performance of duty for Army personnel.  Therefore, the applicant's record
of service is insufficiently meritorious to warrant a general or honorable
discharge.

7.  Records show the applicant should have discovered the alleged injustice
now under consideration on 16 January 1990; therefore, the time for the
applicant to file a request for correction of any injustice expired on 15
January 1993.  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

EA_____  RL______  RM_____  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.




                                  __Eric Andersen_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001565                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060914                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19900116                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 10                  |
|DISCHARGE REASON        |For the good of the service, in lieu of |
|                        |court-martial                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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