RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 October 2006
      DOCKET NUMBER:  AR20060002078


      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. Phyllis M. Perkins           |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James B. Gunlicks             |     |Chairperson          |
|     |Mr. Michael J. Flynn              |     |Member               |
|     |Mr. Scott W. Faught               |     |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 his under other than honorable conditions
discharge be upgraded.

2.  The applicant states, in effect, that his decision to go absent without
leave (AWOL) was based upon the legal advice given by his counsel.  The
applicant further contends that he was advised he would not get fair and
impartial treatment from the military command.

3.  The applicant provides an undated self-authored statement and four
letters in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 15 May 1990, the date of his discharge from active duty.
The application submitted in this case is dated 1 February 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 record shows he enlisted in the Regular Army on
15 September 1983 for a period of four years.  He was trained in, awarded,
and served in military occupational specialty (MOS) 91P10 (X-Ray
Specialist) and
the highest rank he attained while serving on active duty was
specialist/pay
grade E-4.

4.  The applicant's records do no show any significant acts of valor during
his military service.





5.  The applicant's service records reveal a disciplinary history that
includes his acceptance of nonjudicial punishment (NJP) under the provision
of Article 15 of the Uniform Code of Military Justice (UCMJ) for committing
an indecent assault upon a female, a person not his wife on 24 October
1985.

6.  The applicant's records contain a United States Army Criminal
Investigative Division (CID) Report of Investigation Number 001133-86-
CID0112-XXXXX, dated 17 April 1986.  The CID Report of Investigation
indicated that the applicant was investigated for indecent acts with a
child under the age of 16 and willfully disobeying a lawful order.

7.  Records show the applicant was AWOL during the period 10 July 1986
through 20 March 1990.

8.  The applicant's records contain a DD Form 616 (Report of Return of
Absentee), dated 11 March 1990, which show he was apprehended by civil
authorities and returned to military control on 21 March 1990.

9.  On 22 March 1990, charges were preferred against the applicant for
being AWOL during the period 10 July 1986 through 21 March 1990.

10.  On 28 March 1990, the applicant submitted a request for discharge for
the good of the service under the provisions Army Regulation 635-200
(Active Duty Enlisted Administrative Separations), Chapter 10.  In his
request for discharge, the applicant indicated that he had not been coerced
into requesting discharge and had been advised of the implications that
were attached to the request.

11.  The applicant consulted with legal counsel and was advised of the
basis for the contemplated trial by court-martial, the maximum permissible
punishment authorized under the UCMJ, the possible effects of an under
other than honorable conditions discharge, and of the procedures and rights
that were available to him.  He further acknowledged that he understood
that if his discharge request was approved, he could be deprived of many or
all Army benefits, that he could be ineligible for many or all benefits
administered by the Department of Veterans Affairs (VA), and that he could
be deprived of his rights and benefits as a veteran under both Federal and
State law.  The applicant elected not to submit a statement on his own
behalf.




12.  On 20 April 1990, the separation authority approved the applicant's
request for discharge and directed that he receive an under other than
honorable conditions discharge.  On 15 May 1990, the applicant was
discharged
accordingly.  The DD Form 214 he was issued confirms he completed a total
of
2 years, 11 months, and 20 days of creditable active military and that he
accrued over 1000 days of time lost due to AWOL.

13.  The applicant submitted an undated self-authored statement, in which
he states that he was subjected to physical abuse and had a racial epithet
used against him by United States Army CID and Military Police
Investigative (MPI) authorities.

14.  The applicant continues that his decision to go AWOL was influenced by
the fact that no actions were taken against the CID/MPI agents who had
mistreated him and that his counsel advised him that he would not get fair
and impartial treatment.

15.  On 15 March 2005, the Army Discharge Review Board denied the
applicant's petition to upgrade his discharge.

16.  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.

17.  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.

18.  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.

19.  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 that his under other than honorable conditions
discharge should be upgraded to a general discharge.

2.  Records show the applicant had one offense of AWOL totaling over 1000
days.

3.  Evidence also shows the applicant received nonjudicial punishment for
indecent assault.

4.  Based on the seriousness of this 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, he 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.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 15 March 2005.  As
a result, the applicant has applied within the statue of limitations.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_JBG___  __MJF__  _SWF_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.






                                    ___James B. Gunlicks____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060002078                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061005                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          | DENY                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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