RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 February 2007
      DOCKET NUMBER:  AR20060010470


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Hubert O. Fry                 |     |Chairperson          |
|     |Mr. William F. Crain              |     |Member               |
|     |Mr. Dale E. DeBruler              |     |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 that his discharge under other than honorable
conditions (UOTHC) be upgraded.

2.  The applicant states that he never argued that his discharge was an
error or an injustice.  He is just requesting an upgrade because of the
number of years that have passed.  He suffers from numerous medical
conditions, and he is only seeking the benefits of medical treatment.

3.  The applicant provides a DD Form 293 (Application for the Review of
Discharge or Dismissal from the Armed Forces of the United States) and an
Oconee Center [medical] Discharge/Transfer Summary.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 4 May 1992.  The application submitted in this case is dated 25
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 enlisted in the Regular Army on 15 August 1989.  He
completed basic training and advanced individual training and was awarded
military occupational specialty 11B (Infantryman).  He completed airborne
training.

4.  The applicant served in Southwest Asia during Operation Desert Storm
and was awarded the Combat Infantryman Badge.

5.  The applicant’s discharge packet is not available.  On an unknown date,
he signed an “Admission of AWOL (absence without leave) for Administrative
Purposes” memorandum.  In that memorandum, he acknowledged that the
government had not received the necessary documentation and/or records with
which to obtain a conviction by a court-martial and that his defense
counsel was limited by the few records that were available as to the advice
he (counsel) could give.  Nevertheless, the applicant waived all defenses
that could have become known had his defense counsel been able to review
his records.  He knowingly, and willingly, and voluntarily declared that he
was AWOL from 22 September 1991 to 10 October 1991 and from 11 October 1991
to 13 March 1992.

6.  On 4 May 1992, the applicant was discharged with a discharge UOTHC, in
pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10,
discharge in lieu of trial by court-martial.  He had completed 2 years, 3
months, and 1 day of creditable active service.  His DD Form 214
(Certificate of Release or Discharge from Active Duty) shows he had 164
days of lost time.

7.  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
submit a request for discharge for the good of the service in lieu of trial
by court-martial.  The request may be submitted at any time after charges
have been preferred and must include the individual’s admission of guilt.
A discharge UOTHC is normally considered appropriate.

8.  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.

9.  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.

10.  On 8 July 1998, the Army Discharge Review Board (ADRB) denied the
applicant's petition to upgrade his discharge.

11.  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 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 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.  In the absence of evidence to the contrary, it is presumed that the
applicant’s discharge proceedings were conducted in accordance with law and
regulations applicable at the time.

2.  The Board does not grant relief solely for the purpose of enabling a
person to take advantage of Department of Veterans Affairs medical
benefits.  In the absence of any mitigating factors and considering the
applicant’s lengthy AWOL, the characterization of his discharge as UOTHC
was and still is appropriate.

3.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 8July 1998.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to this Board expired on 7 July 2001.  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

__hof___  __wfc___  __ded___  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.




                                  __Hubert O. Fry_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060010470                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070213                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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