RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 November 2006
      DOCKET NUMBER:  AR20060006958


      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. Thomas A. Pagan               |     |Chairperson          |
|     |Mr. Peter B. Fisher               |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 under other than honorable
conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, he was not offered help, he was young,
 and he has been clean and sober since 1990.  He claims he is now a
productive member of society, and he has a family who will benefit if his
discharge is upgraded.

3.  The applicant provides a copy of his separation document (DD Form 214)
in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 10 August 1988.  The application submitted in this case is
dated
3 April 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 show he enlisted in the Regular Army and
entered active duty on 17 June 1985.  He was trained in, awarded, and
served in military occupational specialty (MOS) 63B (Light Wheel Vehicle
Mechanic), and the highest rank he attained while on active duty was
specialist four (SP4).

4.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.  The record does
reveal a disciplinary history that includes his acceptance of non-judicial
punishment (NJP) under the provisions of Article 15 of the Uniform Code of
Military Justice (UCMJ).

5.  On 1 July 1987, the applicant accepted NJP for the wrongful use of a
controlled substance on 26 May 1987.  His punishment for this offense was
reduction to the grade of private/E-2 (PV2), forfeiture of $300.00 per
month for
2 months, and 45 days of extra duty.

6.  On 13 June 1988, a Charge Sheet (DD Form 458) was prepared preferring a
court-martial charge against the applicant for violating Article 86 of the
UCMJ for being absent without leave (AWOL) from on or about 2 April 1988
through on or about 9 June 1988.

7.  On 13 June 1988, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
maximum permissible punishment under the UCMJ, the effects of an UOTHC
discharge, and of the rights available to him.  Subsequent to this
counseling, the applicant requested discharge for the good of the service
in lieu of trail by court-marital under the provisions of chapter 10, Army
Regulation 635-200.

8.  On 14 June 1988, the separation authority approved the applicant’s
request for discharge and directed that he receive an UOTHC discharge. On
10 August 1988, the applicant was discharged accordingly.

9.  The separation document (DD Form 214) issued to the applicant upon his
discharge confirms he completed a total of 2 years, 11 months and 10 days
of creditable active duty service, and that he accrued 68 days of time lost
due to AWOL and confinement.

10.  There is no indication that the applicant applied to the Army
Discharge Review Board for an upgrade of his discharge within its 15-year
statute of limitations.

11.  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 of 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that he was not offered help, he was young,
he has been clean and sober since 1990, and an upgrade of his discharge
will benefit his family was carefully considered.  However, these factors
are not sufficiently mitigating to warrant an upgrade of his discharge at
this time.

2.  The evidence of record confirms the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, the applicant voluntarily
requested discharge from the Army in lieu of trail by court-martial.  All
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout the separation of process.

3.  While the applicant's post service conduct is admirable, this factor
alone is not a basis to support an upgrade of his discharge.  The applicant
voluntarily elected to be discharged in order to avoid a court-martial that
could have resulted in his receiving a punitive discharge, and his
discharge accurately reflects his overall record of undistinguished
service.

4.  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 had failed to
submit evidence that would satisfy this requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 August 1988.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on
9 August 1991.  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

___TAP     __LMD __  __PBF __  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.




                                  _____Thomas A. Pagan____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060006958                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/11/21                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1988/08/10                              |
|DISCHARGE AUTHORITY     |AR 635-200, Ch 10. . . . .              |
|DISCHARGE REASON        |For the Good of the Service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0200.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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