RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 October 2006
      DOCKET NUMBER:  AR20060004613


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Mr. Gerald J. Purcell             |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |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 general discharge, under
honorable conditions, be upgraded to honorable.

2.  The applicant states, in effect, that he fully understands and
acknowledges the character of his discharge as being correct and just as
the conditions when it was issued.  He made a serious mistake.  Being such,
he has tried to move on with his life.  He now requests that the Board
consider the character of his discharge.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty) and several letters of
recommendation in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 7 August 1991, the date of his discharge.  The application
submitted in this case is dated 15 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's record shows he enlisted in the Regular Army on
2 September 1976.  The applicant successfully completed basic combat
training at Fort Leonard Wood, Missouri, and advanced individual training
at Fort Huachuca, Arizona.  On completion of his advanced training, he was
awarded the military occupational specialty (MOS) 17K, Ground Surveillance
Radar Crewman.   He was promoted to sergeant (SGT/E-5) effective 7 July
1981.

4.  On 20 May 1977, the applicant was punished under Article 15, Uniform
Code of Military Justice (UCMJ), for failing to go to his appointed place
of duty.  His punishment consisted of a reduction to pay grade E-2
(suspended) and 7 days restriction and extra duty.

5.  On 17 April 1980, the applicant was punished under Article 15, UCMJ,
for failing to go to his appointed place of duty.  His punishment consisted
of a reduction to pay grade E-3 (suspended), a forfeiture of pay, and
14 days extra duty.

6.  On 11 October 1990, the Commanding General (CG), Headquarters, 1st
Armored Division, APO New York, issued a GOLOR (General Officer Letter of
Reprimand) to the applicant for driving a vehicle while under the influence
of alcohol, with a blood alcohol content of 1.76mg of alcohol per 1.0 ml of
whole blood, on 18 August 1990.  This was imposed as an administrative
measure and not as punishment under Article 15, UCMJ.  The CG stated that
it was his intent to file this letter in the applicant’s Official Military
Personnel File (OMPF).  The letter was referred to the applicant for his
acknowledgement and comment within 5 days.

7.  On that same day, he acknowledged receipt of the reprimand and elected
not to make a statement in his own behalf.  He was reduced from SGT/E-5 to
specialist (SPC/E-4) with an effective date and date of rank of 24 August
1990.

8.  Charges were preferred against the applicant on 13 June 1991, for
assault upon another Soldier, by striking her on her head and face with a
closed fist and  intentionally inflicting grievous bodily harm upon her,
and for being drunk and disorderly on 14 May 1991.

9.  On 15 July 1991, the applicant voluntarily submitted a request for
discharge for the good of the service.  In his request the applicant stated
he understood he could request discharge for the good of the service
because charges had been filed against him under the Uniform Code of
Military Justice (UCMJ), which could authorize the imposition of a bad
conduct or dishonorable discharge.  He added that he was making his request
of his own free will and had not been subjected to coercion whatsoever by
any person.  The applicant stated he had been advised of the implications
that were attached to his request and that by submitting his request, he
acknowledged that he was guilty of the charge against him or of a lesser or
included offense which also authorized the imposition of a bad conduct or a
dishonorable discharge.  Moreover, he stated that under no circumstances
did he desire further rehabilitation for he had no desire to perform
further military service.




10.  Prior to completing his request for discharge for the good of the
service, the applicant was afforded the opportunity to consult with
counsel.  He consulted with counsel on 15 July 1991 and was fully advised
of the nature of his rights under the UCMJ.  Although he was furnished
legal advice, he was informed that the decision to submit a request for
discharge for the good of the service was his own.

11.  The applicant stated that he understood that if his request were
accepted, he could be discharged under other than honorable conditions and
furnished an under other than honorable conditions discharge certificate. 
He was advised and understood the effects of an under other than honorable
conditions discharge and that issuance of such a discharge could deprive
him of many or all Army benefits that he might be eligible for, that he
might be ineligible for many or all benefits administered by the Veterans
Administration [now the Department of Veterans Affairs], and that he might
be deprived of his rights and benefits as a veteran under both Federal and
state law.  He also understood that he could expect to encounter
substantial prejudice in civilian life because of an under other than
honorable conditions discharge.

12.  The applicant was advised that he could submit a statement in his own
behalf, which would accompany his request for discharge.  The applicant
opted not to submit a statement in his own behalf.

13.  On 17 July 1991, the separation authority approved the applicant's
request for discharge and directed that he be furnished an UOTHC
discharge. 

14.  The applicant was discharged in the rank/pay grade, Private/E-1, on
7 August 1991.  He had a total of 14 years, 11 months, and 6 days of net
active service.

15.  The applicant provides several character reference letters and letters
of recommendations for an upgrade of his discharge, which attests to his
character, dedication, responsibility, and involvement in community and to
his employer.  The letters also attest to his post service achievements and
support his request for an upgrade of his discharge to honorable.

16.  The applicant applied to the Army Discharge Review Board (ADRB) for an
upgrade of his discharge on 20 November 1991.  The ADRB determined that his
discharge was proper but was inequitable as to the characterization.  The
ADRB voted 4-1 to grant relief in the form of an upgrade of
characterization of service to general, under honorable conditions, but
voted not to change the narrative reason for discharge on 24 March 1994.
17.  Army Regulation 635-200 sets forth the basic authority for 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 at
any time, after the charges have been preferred, submit a request for
discharge for the good of the service in lieu of trial by court-martial.  A
discharge under other than honorable conditions is normally considered
appropriate.

18.  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.  Whenever there is doubt, it is to be resolved in favor of
the individual.

19.  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.

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 type of separation directed and the reasons for that separation
appear to have been appropriate considering all the available facts of the
case.



3.  The applicant contends that he understood and acknowledged the
character of his discharge as being correct and just as the conditions when
it was issued.  He now states that he made a mistake and has moved on with
his life but requests that the Board consider the character of his
discharge.

4.  The evidence shows that the applicant applied to the ADRB for an
upgrade of his discharge and it was upgraded to general, under honorable
conditions, on 24 March 1994.  However, he is now requesting that his GD be
upgraded to honorable.

5.  The evidence shows that the applicant had behavioral problems.  He had
been administered non-judicial punishment on 20 May 1977 and on 17 April
1980.  He was administered a GOLOR on 11 October 1990 for DUI of alcohol
and the incident that led to his requesting discharge rather then facing
court-martial was also alcohol-related.

6.  The applicant has provided no evidence to show that his discharge was
unjust. 

7.  The applicant's whole record was reviewed.  The applicant served for
nearly 15 years, was promoted to sergeant, and was demoted for misconduct.


8.  The applicant's supporting letters of support were considered; however,
these are not sufficiently mitigating to warrant an upgrade of his
discharge to honorable.

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

10.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 24 March 1994.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 23 March 1997.  However,
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

___JI___  ___KSJ__  ___GJP__  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.




                                  ______John Infante_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004613                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061012                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19910807                                |
|DISCHARGE AUTHORITY     |AR 635-200, chapter 10                  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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