RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 May 2007
      DOCKET NUMBER:  AR20060016603


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

      The following members, a quorum, were present:

|     |Ms. Yolanda Maldonado             |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Mr. Gerald J. Purcell             |     |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 he believes he was a good Soldier in his time of
service. Because of a family crisis and a non-understanding noncommissioned
officer (NCO), he was forced to go of his own accord.  He regrets that it
came to that for he did enjoy his work and the Army way of life.

3.  The applicant provides his DD Form 214 (Certificate of Release or
Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 25 April 1990.  The application submitted in this case is dated
21 November 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 18 June 1985.  He
completed basic training and advanced individual training and was awarded
military occupational specialty 63T (Bradley Fighting Vehicle System
Mechanic).  He was promoted to Specialist, E-4 on 1 November 1987.  He was
honorably discharged on 18 May 1988 and immediately reenlisted on 19 May
1988.

4.  On 16 June 1989, the applicant departed absent without leave (AWOL).
He was apprehended by military authorities in Stockton, CA and returned to
military control on 5 December 1989.

5.  On 13 December 1989, court-martial charges were preferred against the
applicant charging him with AWOL from on or about 16 June 1989 to on or
about 5 December 1989.

6.  On 13 December 1989, after consulting with counsel, the applicant
voluntarily requested a discharge under the provisions of Army Regulation
635-200, chapter 10 for the good of the service in lieu of trial by court-
martial.  The applicant was advised of the effects of a discharge UOTHC and
that he might be deprived of many or all Army and Veterans Administration
benefits.  He elected not to submit a statement in his own behalf.

7.  On 9 April 1990, the appropriate authority approved the request and
directed the applicant receive a discharge UOTHC.

8.  On 25 April 1990, 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 a total
of 4 years,      4 months, and 17 days of creditable active service and had
171 days of lost time.

9.  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.

10.  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.

11.  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. The applicant’s voluntary request for separation under the provisions of
Army Regulation 635-200, chapter 10, for the good of the service to avoid
trial by court-martial, was administratively correct and in conformance
with applicable regulations.  There is no indication that the request was
made under coercion or duress.

2.  The applicant had an opportunity to make a statement when he requested
discharge in which he could have provided mitigating circumstances.  He
failed to take advantage of that opportunity.

3.  The applicant now contends that because of a family crisis and a non-
understanding NCO, he was forced to go of his own accord.  However, he was
an experienced Soldier.  There is no evidence to show he attempted to
resolve his problems (either with a request for leave, for a compassionate
reassignment, or for a hardship discharge) with his higher chain of
command, the chaplain, or the office of the inspector general.

4.  Considering the length of the applicant’s AWOL, the type of discharge
given was appropriate.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 April 1990; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         24 April 1993.  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

__ym____  __lmd___  __gjp___  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.




                                  __Yolanda Maldonado__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060016603                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070517                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19900425                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |A70.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]