RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            03 October 2006
      DOCKET NUMBER:   AR20060004607


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Kenneth Wright                |     |Chairperson          |
|     |Mr. Thomas Ray                    |     |Member               |
|     |Ms. Sherry Stone                  |     |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 to a general discharge.

2.  The applicant states, in effect, that he admits that he made mistakes
but he was forced to accept a discharge under other than honorable
conditions or go to jail and he was young and scared at the time.

3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 22 September 1987.  The application submitted in this case is
dated 14 March 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 was born on 8 April 1964 and enlisted in Cleveland, Ohio,
on 10 August 1983, for a period of 4 years and training as heavy
construction equipment operator.  He successfully completed his training at
Fort Leonard Wood, Missouri, and was transferred to Fort Polk, Louisiana,
for assignment to an engineer company.

4.  On 15 April 1985, nonjudicial punishment (NJP) was imposed against him
for the wrongful use of marijuana.  His punishment consisted of a reduction
to the pay grade of E-1, a forfeiture of pay, extra duty and restriction.

5.  On 1 August 1985, he was transferred to Hawaii and on 2 May 1987, he
received a general officer memorandum of reprimand for an alcohol related
driving incident.

6.  On 11 June 1987, NJP was imposed against him for striking an individual
on the head with a wine cooler bottle, the illegal use of cocaine and the
illegal use of marijuana.  His punishment consisted of a forfeiture of pay
and extra duty.

7.  On 7 August 1987, charges were preferred against the applicant for two
specifications of striking two other Soldiers in the head with his
hands/fists (assault).

8.  On 24 August 1987, 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 elected to submit a
statement in his own behalf whereas he asserted that he was mentally and
physically exhausted from being in the military, that he was already past
his expiration of term of service (ETS) and that he had shipped all of his
belongings and wanted to go home and start his life as a civilian.

9.  The appropriate authority approved his request on 10 September 1987 and
directed that he be discharged under other than honorable conditions.

10.  Accordingly, he was discharged under other than honorable conditions
on 22 September 1987, under the provisions of Army Regulation 635-200,
chapter 10, in lieu of trial by court-martial.  He had served 4 years, 1
month, and 13 days of total active service.

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 was then and still is
normally considered appropriate.

 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.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate under the circumstances.

3.  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.

4.  The applicant's contentions have been noted; however, they are not
sufficiently mitigating to warrant relief when compared to his
undistinguished record of service during such a short period.

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 22 September 1987; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 21 September 1990.  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

___KW__  ___TR___  ___SS __  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.




                                  _____ Kenneth Wright_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004607                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061003                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |1987/09/22                              |
|DISCHARGE AUTHORITY     |AR635-200/CH10 . . . . .                |
|DISCHARGE REASON        |GD OF SVC                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |689/A70.00                              |
|1.144.7000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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