RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        30 November 2006
      DOCKET NUMBER:  AR20060006634


      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. Betty A. Snow                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William F. Crain              |     |Chairperson          |
|     |Ms. Alice Muellerweiss            |     |Member               |
|     |Mr. Donald L. Lewy                |     |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, an upgrade of his under other than
honorable conditions (UOTHC) discharge.

2.  The applicant states, in effect, that he needs his discharge upgraded
in order to use Department of Veterans Affairs (VA) benefits.  He claims
that while serving in Korea, his baby daughter was in the hospital and
seriously ill, and when he received no help from the Red Cross or from his
chain of command in Korea to get home, he elected not to return to Korea.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 2 April 1990.  The application submitted in this case is
dated 2 May 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 records shows he enlisted in the Regular Army and
entered active duty on 2 February 1982.  He was trained in, awarded, and
served in military occupational specialty (MOS) 19D10 (Cavalry Scout), and
the highest rank he held while on active duty was sergeant (SGT).

4.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.  The record does
reveal a disciplinary history.  His Personnel Qualification Record (DA Form
2-1) shows, in Item 21 (Lost Time), that he accrued 100 days of time lost
due to being absent without leave (AWOL) from 23 September 1989 through 31
January 1989 (sic, should be 1990), and 2 days due to being in civil
confinement from 12 through
13 December 1987.

6.  The applicant’s Military Personnel Records Jacket (MPRJ) is void of a
separation packet containing the specific facts and circumstances
surrounding the applicant’s separation processing.

7.  The applicant’s record does include a separation document (DD Form 214)
that shows on 2 April 1990, he was separated under the provisions of
chapter 10, Army Regulation 635-200, for the good of the service in lieu of
trial by
court-martial, and that he received an UOTHC discharge.  It also shows that
at the time of his discharge, he had completed 8 years, 9 months, and 21
days of creditable active military service, and that he accrued 102 days of
time lost due to AWOL and confinement.

8.  The applicant's DD Form 214 further shows that during his tenure on
active duty, he earned the Army Service Ribbon, Expert Marksmanship
Qualification Badge with Rifle Bar, First Class Qualification Badge with
Hand Grenade Bar, NCO (Noncommissioned Officer) Professional Development
Ribbon (Primary Level), Army Good Conduct Medal (First Award), and the
Overseas Service Ribbon.

9.  There is no indication that the applicant requested an upgrade of his
discharge from the Army Discharge Review Board within its 15-year statue of
limitations.

10.  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 at
any time after the charges have been preferred, submit a request for
discharge for the good of the service in lieu of trail by court-martial.  A
discharge UOTHC discharge is normally appropriate for members separated
under these provisions.  The separation authority may grant a general,
under honorable conditions discharge when the member's service record is
sufficiently meritorious.  An honorable discharge (HD) is not authorized
unless the member's service is meritorious that anything other than an HD
would be inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his UOTHC discharge should be upgraded
in order for him to use VA Benefits was carefully considered.  However,
this factor is not sufficiently mitigating to support granting the
requested relief.

2.  The available evidence does not include a separation packet that
contains the specific facts and circumstances surrounding the applicant’s
final discharge processing.  However, it does include a properly
constituted DD Form 214 that identifies the reason and characterization of
the applicant’s final discharge.  Therefore, Government regularity in the
discharge process is presumed.

3.  The applicant’s separation document confirms he was discharged under
the provisions of chapter 10, Army Regulation 635-200, for the good of the
service,
in lieu of trial by court-martial.  In connection with such a discharge, he
was charged with the commission of an offense punishable with a punitive
discharge under the UCMJ.  Procedurally, he was required to consult with
defense
counsel, and to voluntarily request separation from the Army in lieu of
trial by
court-martial.  In doing so, he would have admitted guilt to the stipulated
offense(s) under the UCMJ that authorized the imposition of a punitive
discharge.

4.  In the absence of information to the contrary, it is concluded that all
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout the separation process.

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 2 April 1990, the date of his
discharge from the Army.  Therefore, the time for him to file a request for
correction of any error or injustice expired on 1 April 1993.  He failed to
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

___WFC_  __AM___  __DLL___  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.




                                  ____William F. Crain______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060006634                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/11/30                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1990/04/02                              |
|DISCHARGE AUTHORITY     |AR 635-200, Ch 10. . . . .              |
|DISCHARGE REASON        |For the good of the service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.000                                 |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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