RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 July 2007
      DOCKET NUMBER:  AR20070001482


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Ms. Susan A. Powers               |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 discharge and a
change to his reentry (RE) code.

2.  The applicant states, in effect, that he is currently a United States
(US) resident and is applying for US citizenship.  He states that his
discharge status will hinder him in taking care of the responsibility of
becoming a US citizen.  He states his mother was diagnosed with cancer in
1988, and she passed away on
6 January 1989, which is the reason he left the Army.  He states this was a
big mistake on his part, and he is very sorry for it.  He claims this bad
decision, which he made at a very young age, has cost him jobs and career
opportunities.  He states an upgrade of his discharge will have a positive
impact on his wife and the future of his two sons.

3.  The applicant provides a self-authored statement, separation document
(DD Form 214), and the death certificate for his mother in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that  occurred on 13 July 1989, the date of his discharge.  The application
submitted in this case is dated 15 January 2005.

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 26 January 1988, at the age of 18 years and 9
months.  He was trained in and awarded military occupational specialty
(MOS) 11M (Fighting Vehicle Infantryman), and the highest rank he attained
while serving on active duty was private first class (PFC).
4.  The applicant's record shows that during his active duty tenure, he
earned the Army Service Ribbon.  His record documents no acts of valor,
significant achievement or service warranting special recognition,

5.  On 28 November 1988, the applicant departed absent without leave (AWOL)
from his unit in Germany.  He was dropped from the rolls of the
organization on 27 December 1988, and he remained away until returning to
military control at the United States Army Personnel Control Facility, Fort
Ord, California, on
6 February 1989.

6.  On 16 February 1989, a Charge Sheet (DD Form 458) 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
28 November 1988 through on or about 6 February 1989.

7.  On 16 February 1989, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
maximum punishment authorized under the UCMJ, the significance of a bad
conduct or dishonorable discharge, and of the possible effects of an under
other than honorable conditions (UOTHC) discharge.  Subsequent to this
counseling, the applicant voluntarily requested discharge for the good of
the service under the provisions of chapter 10, Army Regulation 635-200.
He stated that by submitting the request for discharge, he was
acknowledging his guilt of the charge against him or of a lesser included
offense therein contained, which also authorized the imposition of a bad
conduct or dishonorable discharge.  He further indicated that he understood
that if his request for discharge were approved, he could receive an UOTHC
discharge, which could result in his being deprived of many or all Army
benefits that he would be administratively reduced to the lowest enlisted
grade, and that he could be ineligible for many or all benefits
administered by the Department of Veterans Affairs (VA).  He further
acknowledged his understanding that he could expect to encounter
substantial prejudice in civilian life because of an UOTHC discharge, and
he was advised that he could .
submit statements in his own behalf.  The applicant elected not to submit a
statement in his own behalf.

8.  On 21 June 1989, the separation authority approved the applicant's
discharge under the provisions of chapter 10, Army Regulation 635-200 for
the good of the service, and directed the applicant receive an UOTHC
discharge and that he be reduced to the lowest enlisted grade.  On 13 July
1989, the applicant was discharged accordingly.
9.  The DD Form 214 issued the applicant upon his discharge confirms he
completed a total of 1 year, 3 months, and 9 days of creditable active
military service and that he accrued 70 days of time lost due to AWOL.

10.  The applicant provides a death certificate for his mother, which shows
she died on 6 January 1989.

11.  There is no indication that the applicant applied to the Army
Discharge Review Board for an upgrade of his discharge within that board'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 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 contentions that his ability to serve was impaired by
the illness and death of his mother, and that his discharge should be
upgraded to assist him in pursuing US citizenship were carefully
considered.  However, while the illness and death of his mother was
unfortunate, there is no indication he ever sought assistance with this
situation from his chain of command, or that he pursued a hardship
discharge option at the time.  Further, although his goal to obtain US
citizenship is admirable, it alone does not provide a basis to grant the
requested relief.  As a result, these factors are not sufficiently
mitigating to support granting the requested relief.

2.  The applicant's record documents no acts of valor, significant
achievement or service warranting special recognition.  However, it does
confirm he was charged with the commission of an offense punishable under
the UCMJ with a punitive discharge.

3.  The record shows that 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 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 undistinguished record of 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 13 July 1989, the date of his
discharge.  Therefore, the time for him to file a request for correction of
any error or injustice expired on 12 July 1992.  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

___KAN _  ___SAP     __EEM__  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.




                                  _____Kathleen A. Newman____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070001482                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/07/10                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1989/07/13                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |In Lieu of C-M                          |
|BOARD DECISION          | DENY                                   |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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