RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 September 2006
      DOCKET NUMBER:  AR20060002708


      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. Beverly A. Young              |     |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 that his discharge under other than honorable
conditions (UOTHC) be upgraded to a general under honorable conditions
discharge.

2.  The applicant states that no commander or noncommissioned officer was
dissatisfied with his performance or professionalism during his first and
second enlistment.  He believes that the battery commander, platoon
commander, first sergeant, and platoon sergeant belittled him at his last
duty assignment.

3.  The applicant provides no additional documents in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 28 June 1985.  The application submitted in this case is dated
8 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 enlisted in the Regular Army on 20 May 1977 for a period
of four years.  He completed basic training and advanced individual
training at Fort Sill, Oklahoma.  He was awarded military occupational
specialty 15E (Pershing Missile Crewman).  He was promoted to sergeant on
10 September 1980.

4.  The applicant was discharged from active duty on 29 January 1981 for
immediate reenlistment.  He reenlisted on 30 January 1981 for a period of
six years.  He was later reclassified into MOS 82C (Field Artillery
Surveyor).

5.  The applicant was convicted by a special court-martial, contrary to his
plea, on 17 September 1981 of additional charges of being derelict in the
performance of his duties by failing to report wrongful possession and use
of marijuana when he encountered it in the billets area; for disobeying a
lawful order from his superior warrant officer; and for being derelict in
the performance of his duties by willfully failing to stay awake on duty on
two separate occasions.  He was sentenced to a reduction to specialist four
and a forfeiture of $250.00 pay per month for one month.  The initial court-
martial order is not available in the applicant’s records.

6.  He was promoted to specialist five on 3 January 1983.

7.  He received two counseling statements on 7 December 1984 for failing to
follow an instruction and for missing morning formation.

8.  On 19 December 1984, the applicant accepted nonjudicial punishment
under Article 15, UCMJ for failing to go to his appointed place of duty and
for willfully disobeying a lawful order from his superior noncommissioned
officer on two separate occasions.  His punishment consisted of a reduction
to pay grade E-4.

9.  On 8 March 1985, the applicant accepted nonjudicial punishment under
Article 15, UCMJ for failing to go to his appointed place of duty.  His
punishment consisted of restriction for 14 days and extra duty for 14 days.


10.  The applicant received counseling statements on 11 March 1985 and
    13 March 1985 for violating a lawful order not to leave post.

11.  On 13 March 1985, the unit commander notified the applicant of his
proposed recommendation to discharge him under the provisions of Army
Regulation 635-200, chapter 13 for unsatisfactory performance.  He was
advised of his rights.  The applicant acknowledged notification, consulted
with legal counsel, requested consideration of his case by a board of
officers, and did not submit statements in his own behalf.

12.  On 19 March 1985, the unit commander recommended that the applicant be
discharged from the service before his expiration term of service under the
provisions of Army Regulation 635-200, chapter 13 for unsatisfactory
performance.  The unit commander stated the applicant’s poor duty
preparedness and performance, and conduct not becoming a Soldier, was
primarily displayed through his inability to follow orders from a
noncommissioned officer.

13.  On 11 April 1985, the applicant accepted nonjudicial punishment under
Article 15, UCMJ for being absent without leave (AWOL) from 25 March 1985
to 8 April 1985.  His punishment consisted of a reduction to private first
class and a forfeiture of $192.00 for one month.  This period of AWOL is
not listed under
item 29 (Dates of Time Lost During This Period) on his DD Form 214
(Certificate of Release or Discharge from Active Duty).

14.  The applicant was absent without leave (AWOL) on 13 April 1985.  He
was confined by civil authorities on 9 May 1985 for possession of marijuana
and driving while intoxicated (DWI).  His personnel records contain a DA
Form 4187 (Personnel Action), dated 24 May 1985, which indicates the case
for possession of marijuana was dropped.  On 14 May 1985, the applicant was
found guilty of DWI and sentenced to 15 days confinement.  He returned to
military control on 21 May 1985.

15.  Charges were preferred against the applicant on 24 May 1985 for being
AWOL from 13 April 1985 to 21 May 1985.

16.  On 24 May 1985, the applicant consulted with legal counsel and
voluntarily requested discharge for the good of the service under the
provisions of Army Regulation 635-200, chapter 10.  In doing so, he
admitted guilt to the offense charged and acknowledged that he might
encounter substantial prejudice in civilian life and that he might be
ineligible for many or all Army benefits administered by the Department of
Veterans Affairs (VA) if a discharge UOTHC was issued.  The applicant did
not submit statements in his own behalf.

17.  On 17 June 1985, the separation authority approved the discharge under
the provisions of Army Regulation 635-200, chapter 10 with issuance of an
UOTHC Discharge Certificate.

18.  The applicant was discharged on 28 June 1985 under the provisions of
Army Regulation 635-200, chapter 10 for the good of the service with a
discharge UOTHC.  He had completed 4 years, 3 months, and 7 days of active
military service during the period under review.  He had 52 days of lost
time due to AWOL.

19.  There is no evidence of record which shows the applicant applied to
the Army Discharge Review Board (ADRB) within its 15-year statute of
limitations.

20.  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 UOTHC
is normally considered appropriate.


21.  Army Regulation 635-200, paragraph 3-7b, 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.

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

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, to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.  There is no indication that the
request was made under coercion or duress.

2.  The applicant's record of service shows he received three Article 15s,
one special court-martial, and was AWOL for 52 days during the period under
review.

3.  It appears the chain of command determined that the applicant's overall
military service did not meet the standards for a general discharge as
defined in Army Regulation 635-200 and his service was appropriately
characterized as under other than honorable conditions.

4.  The applicant contends that his battery commander, platoon commander,
first sergeant, and platoon sergeant belittled him at his last duty
assignment; however, there is no evidence of record which substantiates his
claim.

5.  Since there is no evidence of record which indicates the actions taken
in his case were in error or unjust, there is no basis for granting the
applicant's request for an upgrade of his discharge to general under
honorable conditions.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 June 1985; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 27 June 1988.  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                 |AR20060002708                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060914                                |
|TYPE OF DISCHARGE       |UOTCH                                   |
|DATE OF DISCHARGE       |19850628                                |
|DISCHARGE AUTHORITY     |AR635-200, chapter 10                   |
|DISCHARGE REASON        |For the good of the service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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