RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 August 2006
      DOCKET NUMBER:  AR20060002901


      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. Jesse B. Strickland           |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Jeanette R. McCants           |     |Chairperson          |
|     |Mr. Scott W. Faught               |     |Member               |
|     |Mr. Rowland C. Heflin             |     |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.

2.  The applicant states, in effect, that he desires his discharge to be
upgraded so that he may use medical facilities for the purpose of drug
rehabilitation.  He also states that he was informed at the time of his
discharge that it could be upgraded after 10 years.

3.  The applicant provides a letter he wrote while incarcerated regarding
the poor living conditions in the jail he was in.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 5 March 1986.  The application submitted in this case is dated
17 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 Newark, New Jersey on 26 May 1982 for a
period of 3 years and training as a petroleum supply specialist.  He was
transferred to Fort Jackson, South Carolina to undergo his basic combat
training and to Fort Lee, Virginia to undergo his advanced individual
training (AIT).

4.  On 1 September 1982, while still in AIT, nonjudicial punishment (NJP)
was imposed against him for being disrespectful in language towards a
superior noncommissioned officer (NCO).  His punishment consisted of a
forfeiture of pay, restriction, and extra duty.

5.  On 13 September 1982, NJP was again imposed against the applicant for
breaking restriction and for failure to go to his place of duty.  His
punishment consisted of a forfeiture of pay, extra duty, and restriction.

6.  The applicant completed his AIT and was assigned to a quartermaster
company at Fort Lee on 28 September 1982 for duty as a pump station
operator.

7.  On 22 December 1982, the applicant went absent without leave (AWOL) and
remained absent until he was apprehended by civil authorities and was
returned to military control at Fort Hamilton, New York, on 17 December
1985.  He was transferred to Fort Dix, New Jersey, where charges were
preferred against him for the AWOL charge.

8.  On 19 December 1985, after consulting with defense counsel, the
applicant submitted a request for discharge for the good of the service,
under the provisions of Army Regulation 635-200, chapter 10, in lieu of
trial by court-martial.  In his request he indicated that he understood the
charges that had been preferred against him, that he was making the request
of his own free will, without coercion from anyone and that he was aware of
the implications attached to his request.  He also admitted that he was
guilty of the charges against him or of lesser included offenses which
authorized the imposition of a bad conduct or dishonorable discharge.  He
acknowledged that he understood that he could receive a discharge under
other than honorable conditions and that he might be deprived of all
benefits as a result of such a discharge.  He further declined the
opportunity to submit a statement or explanation in his own behalf.

9.  The appropriate authority approved his request on 10 February 1986 and
directed that he be discharged under other than honorable conditions.

10.  Accordingly, he was discharged under other than honorable conditions
on 5 March 1986, under the provisions of Army Regulation 635-200, chapter
10, in lieu of trial by court-martial.  He had served 9 months and 15 days
of total active service and had 1,090 days of lost time due to AWOL.

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

12.  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 and there have never been any provisions for an automatic
upgrade of such discharges.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions have been noted; however, they are not
sufficiently mitigating to warrant relief when compared to his overall
record of undistinguished service and his extensive absence.  His service
simply does not rise to the level of a discharge under honorable
conditions.

4.  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.  In doing so he admitted guilt to the
charges against him.

5.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 5 March 1986; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 4 March 1989.  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

__JRM __  __RCH__  ___SWF_  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.




                                  ____Jeanette R. McCants______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060002901                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060824                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |1986/03/05                              |
|DISCHARGE AUTHORITY     |AR635-200/ch10.                         |
|DISCHARGE REASON        |Gd of svc                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |689/a70.00                              |
|1.144.7000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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