RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 December 2006
      DOCKET NUMBER:  AR20060007833


      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:

|     |Ms. Kathleen Newman               |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Mr. John M. Moeller               |     |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, characterized as
under other than honorable conditions (UOTHC), be upgraded to a general
discharge.

2.  The applicant states, in effect, that he was awarded two awards of the
Good Conduct Medal (GCMDL) with no other serious disciplinary infractions
in his military service record.

3.  The applicant provides a copy of his DD Form 214 (Certificate or
Release or Discharge from Active Duty) and a copy of his DA Form 2-1
(Personnel Qualification Record – Part II) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 28 October 1987, the date of his discharge.  The application
submitted in this case is dated 25 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 record shows he enlisted in the Regular Army on
22 November 1976.  The applicant successfully completed basic combat
training and advanced individual training at Fort Jackson, South Carolina.
On completion of his OSUT (one station unit training), he was awarded the
military occupational specialty (MOS), 63B, Construction Equipment
Repairman.

4.  He was promoted to sergeant (SGT/E-5) effective 8 December 1980.

5.  On 21 May 1987, he was punished under Article 15, Uniform Code of
Military Justice (UCMJ), for wrongful appropriation of a government
vehicle.  His punishment consisted of a reduction to pay grade E-4
(suspended), a forfeiture of pay, and 30 days extra duty.

6.  All the documents containing the facts and circumstances surrounding
the applicant's discharge are not present in the available records. 
However, the applicant submitted a copy of his DD Form 214 which shows that
on 28 October 1987, he was discharged under the provisions of Army
Regulation 635-200, chapter 10, for the good of the service, in lieu of
trial by court-martial.  He was furnished a UOTHC discharge, in the pay
grade of E-1.  He had a total of 10 years, 11 months, and 7 days of
creditable service. 

7.  The applicant's DD Form 214 shows he was awarded the Army Service
Ribbon, the Overseas Service Ribbon, the Army Good Conduct Medal (2nd
Award), the NCO (noncommissioned officer) Professional Development Ribbon,
the Driver and Mechanic Badge, and the Expert Marksmanship Qualification
Badge with Rifle Bar.

8.  There is no evidence that the applicant applied to the Army Discharge
Review Board (ADRB) for an upgrade of his discharge within its 15-year
statute of limitations.

9.  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.

10.  Army Regulation 635-200, paragraph 3-7b, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier's separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, the Board presumes
Government regularity and believes that the applicant's administrative
separation was accomplished in compliance with applicable regulations, with
no procedural errors, which would tend to jeopardize his rights.

2.  The evidence of record shows the applicant was discharged under the
provisions of Army Regulation 635-200, Chapter 10, for the good of the
service, in lieu of trial by court-martial.

3.  The applicant's record contains a properly constituted DD Form 214. 
This document identifies the reason and characterization of his discharge. 


4.  It is evident, that court-martial charges were preferred against the
applicant; however, these documents are unavailable for review and the
applicant failed to provide this information to the Board. 

5.  The applicant has provided insufficient evidence to show that his
discharge was unjust.  He also has not provided evidence sufficient to
mitigate the character of his discharge.

6.  The applicant contends that he was awarded two awards of the GCMDL with
no other serious disciplinary infractions.  However, his record shows he
received an Article 15, under the provisions of the UCMJ, for the
misappropriation of a government vehicle, which by any measure is serious.
With all the facts and circumstances leading to this discharge unavailable,
it is assumed that some other type of offense or offenses occurred which
caused his discharge under the provisions of Army Regulation 635-200,
chapter 10.

7.  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.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 October 1987; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 27 October 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

__JMM___  ___PMS_  __KAN__  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.




                                  _____Kathleen Newman_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060007833                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061206                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19871028                                |
|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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