RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 June 2007
      DOCKET NUMBER:  AR20070000623


      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. Carmen Duncan                 |     |Chairperson          |
|     |Mr. Michael J. Flynn              |     |Member               |
|     |Mr. Jeffrey C. Redmann            |     |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 be upgraded.

2.  The applicant states, in effect, that he believes his previous good
service warrants an upgrade in his discharge.  He was very young at the
time and did not really know how to ask for help with his problem.  He was
too embarrassed to ask anyone for help.  Being a sergeant, he thought he
was a leader and did not need help.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 15 July 1988.  The application submitted in this case is dated
3 January 2007.

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 was born on 22 January 1961.  He enlisted in the Regular
Army on 4 September 1979.  He was promoted to sergeant, E-5 on 1 March
1985.  He was honorably discharged on 20 August 1985 and immediately
reenlisted on    21 August 1985.

4.  Around August 1987, the applicant was given a letter of reprimand by
his battery commander, to be placed in his battery file, regarding a
larceny charge he received on 14 August 1987.

5.  On 24 February 1988, the applicant accepted nonjudicial punishment
under Article 15, Uniform Code of Military Justice for willfully and
wrongfully damaging a 1988 Ford, the privately owned vehicle of Angela
A___, by striking it with his foot, causing some amount of damage.  His
punishment was a reduction to pay grade E-4, 41 days restriction, 45 days
extra duty (suspended for 6 months), and a forfeiture of $300.00 pay per
month for two months.


6.  A DA Form 3997 (Military Police Desk Blotter) shows the applicant was
written up in the Military Police Desk Blotter on 29 December 1987 for a
domestic assault; in May 1988 for allegedly sending several threatening
letters; on           15 February 1988 for communicating a threat and false
swearing; on 2 April 1988 for unsafe backing; and on 13 April 1988 for
wrongfully possessing/using cocaine.

7.  On 21 June 1988, court-martial charges were preferred against the
applicant charging him with wrongful use of cocaine.

8.  On 23 June 1988, after consulting with legal 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 under
other than honorable conditions 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.

9.  The appropriate authority approved the request and directed the
applicant receive a discharge under other than honorable conditions.

10.  On 15 July 1988, the applicant was discharged with a discharge under
other than honorable conditions, in pay grade E-1, under the provisions of
Army Regulation 635-200, chapter 10, discharge for the good of the service
in lieu of court-martial.  He had completed a total of 8 years, 10 months,
and 12 days of creditable active service and had no lost time.

11.  On 29 March 1989, the Army Discharge Review Board (ADRB) denied the
applicant's petition to upgrade his discharge.

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
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 under other than honorable conditions is normally considered
appropriate.

13.  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.

14.  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.

15.  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.  The applicant was 26 years old at the time his records first indicated
misconduct on his part.  As a noncommissioned officer leader, the applicant
should have realized that seeking help for any problems he had would have
set an example for younger Soldiers who had similar problems.

2.  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.

3.  The applicant’s prior good service is commendable, and he received an
honorable discharge for that prior service as recognized by the listing of
his immediate reenlistment on his DD Form 214 (Certificate of Release or
Discharge from Active Duty).  However, his prior good service does not
mitigate the misconduct for which his last enlistment was appropriately
characterized as under other than honorable conditions.

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 29 March 1989.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 28 March 1992.  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

__cd____  __mjf___  __jcr___  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.




                                  __Carmen Duncan_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070000623                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070607                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19880715                                |
|DISCHARGE AUTHORITY     |AR 635-200, ch 10                       |
|DISCHARGE REASON        |A70.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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