RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 March 2007
      DOCKET NUMBER:  AR20060012081


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Scott W. Faught               |     |Member               |
|     |Mr. Roland S. Venable             |     |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, he did not fully understand the papers
he signed at the time of his discharge.  He claims his wife was pregnant
and he was under much stress.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 7 January 1980, the date of his discharge.  The
application submitted in this case is dated 7 August 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 that he enlisted in the Regular Army and
entered active duty on 13 June 1979.  He successfully completed basic
combat training at Fort Jackson, South Carolina, on 7 August 1978, and he
was assigned to Fort Sam Houston, Texas, to attend advanced individual
training (AIT) in military occupational specialty (MOS) 91B (Medical
Specialist).

4.  On 2 September 1979, the applicant departed absent without leave (AWOL)
from his AIT unit at Fort Sam Houston.  He remained away for 64 days until
returning to military control at Fort Sill, Oklahoma, on 5 November 1979.
His record documents no acts of valor, significant achievement, or service
warranting special recognition.

5.  On 30 November 1979, a Charge Sheet (DD Form 459) was prepared
preferring a court-martial charge against the applicant for violating
Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL
from on or about
2 September through on or about 5 November 1979.
6.  On 30 November 1079, the applicant consulted with legal counsel and was
advised of the basis to the contemplated trial by court-martial, the
maximum permissible punishment under the UCMJ, the possible effects of an
UOTHC discharge, and of the rights available to him.  Subsequent to
receiving this counseling, the applicant voluntarily requested discharge
for the good of the service in lieu of trial by court-martial.  In his
discharge request, the applicant acknowledged that by submitting the
request for discharge, he was admitting guilt to the offense charged, or a
lesser included offense therein, which also authorized the imposition of a
bad conduct or dishonorable discharge.  He also stated that he understood
that he could receive an UOTHC discharge and as a result be deprived of
many or all Army benefits, and that he could be ineligible for many or all
benefits administered by the Department of Veterans Affairs (VA).

7.  On 21 December 1979, the separation authority approved the applicant's
request for discharge, and directed he receive an UOTHC discharge.  On
7 January 1980, the applicant was discharged accordingly.

8.  The separation document (DD Form 214) issued to the applicant upon his
discharge confirms he completed 4 months and 18 days of creditable active
military service, and had accrued 64 days of time lost due to AWOL.

9.  On 10 March 1987, the Army Discharge Review Board denied the
applicant's petition to upgrade his discharge.

10.  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.

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 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.
An UOTHC discharge normally is appropriate for a Soldier who is discharged
in lieu of trial by court-martial.  However, the separation authority may
direct a general discharge if such is merited by the Soldier's overall
record during the current enlistment.  An honorable discharge is not
authorized unless the Soldier's record is otherwise so meritorious that any
other characterization clearly would be improper.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he did not fully understand the
paperwork he completed at the time of his discharge was carefully
considered.  However, the evidence of record includes a statement completed
by the applicant with his legal counsel during his separation processing.
It confirms he was fully advised of the possible impact of his discharge,
and of the rights available to him.  Therefore, there is insufficient
evidence to support this claim.

2.  The applicant's claim that he was under much stress due to his wife's
pregnancy was also considered.  However, this factor is not sufficiently
mitigating to support an upgrade of his discharge.

3.  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 trial by court-martial.  In
his request for discharge, he admitted guilt to the charge against him, or
of a lesser included offense, that also authorized the imposition of a bad
conduct or dishonorable discharge.  All requirements of law and regulation
were met and that the rights of the applicant were fully protected
throughout the separation process.

4.  The evidence of record further shows that after being AWOL for 64 days,
the applicant voluntarily requested discharge to avoid a court-martial that
could have resulted in his receiving a punitive discharge.  The UOTHC
discharge the applicant received was normal and appropriate under the
regulatory guidance, and his overall record of short and undistinguished
service clearly did not support a general or honorable discharge at the
time, nor does it support an upgrade now.

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 exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 10 March 1987.
Thus, the time for him to file a request for correction of any error or
injustice to this Board expired on 9 March 1990.  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

___JEA__  __SWF__  __RSV__  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.




                                  _____James E Anderholm___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060012081                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/03/06                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1980/01/07                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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