RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:       17 May 2007
      DOCKET NUMBER:  AR20060015506


      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. Eric N. Andersen              |     |Chairperson          |
|     |Mr. Antonio Uribe                 |     |Member               |
|     |Mr. Rodney E. Barber              |     |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, his discharge should be upgraded
because he was a good Soldier.

3.  The applicant provides 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 18 February 1983, the date of his discharge.  The
application submitted in this case is dated 27 October 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 6 June 1978.  He was trained in and awarded military
occupational specialty (MOS) 63B (Wheel Vehicle Mechanic) and the highest
rank he attained while serving on active duty was private/E-2 (PV2).  His
record documents no acts of valor, significant achievement, or service
warranting special recognition.

4.  The applicant's disciplinary history includes his acceptance of non-
judicial punishment under the provisions of Article 15 of the Uniform Code
of Military Justice (UCMJ) on three separate occasions (12 October 1978-
Failure to Repair, 28 June 1980 - Disrespect to an NCO, and 23 July 1980
-AWOL); and his conviction by a special court-martial (SPCM) for disobeying
a lawful order on
14 March 1980, drunk and disorderly on 14 March 1980, incapacitation for
duty on 14 March 1980 and absent without leave (AWOL) from 18 April through
6 May 1980.

5.  The applicant's record also shows an extensive record of counseling for
a myriad of performance and conduct related disciplinary infractions that
included dishonored checks, failed inspections, disobeying orders,
communicating threats, lack of motivation, and breaking restriction.

6.  The applicant's record also shows he accrued 911 days of time lost
during seven separate periods of AWOL between 18 April 1980 and 5 December
1982.

7.  On 14 February 1983, a Charge Sheet (DD Form 459) was prepared
preferring a court-martial charge against the applicant for five
specifications of violating Article 86 of the Uniform Code of Military
Justice (UCMJ) by being AWOL during the following periods:  30 July through
11 August 1980; 12 August through 13 October 1980; 15 October 1980 through
5 June 1982; 6 June through 5 December 1982; and 4 January through 10
February 1983.

8.  On 30 November 1979, 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).

9.  On 17 February 1983, the separation authority approved the applicant's
request for discharge, and directed he receive an UOTHC discharge.  On
18 February 1983, the applicant was discharged accordingly.

10.  The separation document (DD Form 214) issued to the applicant upon his
discharge confirms he completed 2 years and 17 days of creditable active
military service, and had accrued 911 days of time lost due to AWOL.

11.  There is no indication that the applicant petitioned the Army
Discharge Review Board (ADRB) for an upgrade of his discharge within the
ADRB's 15-year statute of limitations.

12.  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 (GD) 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 his discharge should be upgraded
because he was a good Soldier was carefully considered.  However, there is
insufficient evidence to support this claim.

2.  The applicant's record documents no acts of valor, significant
achievement, or service warranting special recognition.  However, it does
reveal an extensive disciplinary history that includes his acceptance of
NJP on three separate occasions and his conviction by a SPCM.  It also
includes an extensive counseling record for a myriad of conduct and
performance issues that included dishonored checks, and his accrual of 911
days of time lost due to AWOL.

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 more
than 800 day, 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
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 should have discovered the alleged error or
injustice now under consideration on 18 February 1983, the date of his
discharge.  Therefore, the time for him file a request for correction of
any error or injustice expired on 17 February 1986.  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

___ERN_  __AU  ___  __REB __  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.




                                  _____Eric N. Andersen ____
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20060015506                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/05/17                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1983/02/18                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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