RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 July 2007
      DOCKET NUMBER:  AR20070001487


      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             |
|     |Mrs. Nancy L. Amos                |     |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 that his discharge be upgraded to honorable.

2.  The applicant states he needs his discharge upgraded so he can
reenlist.  He was forced to accept a convenience of the government
discharge of less than honorable.  He has been counseled that he needs his
discharge upgraded to be acceptable for reenlistment.

3.  The applicant provides two DD Forms 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 8 July 1987.  The application submitted in this case is dated
11 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 25 August 1958.  After having had prior
service in the Regular Army from which he was honorably released from
active duty on      4 April 1980, he enlisted in the Regular Army on 22
April 1981.

4.  The court-martial charge sheet is not available.  A DA Form 268 (Report
for Suspension of Favorable Personnel Actions) dated 9 June 1983 shows the
applicant surrendered to military control at Fort Sheridan, IL on 6 June
1983 and had been absent without leave (AWOL) since 2 May 1983.

5.  On 16 June 1983, 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.  He acknowledged that he was making the request of his own free
will and had not been subjected to any coercion whatsoever by any person.
He acknowledged that by submitting the request for discharge that he was
guilty of the charge(s) against him or lesser included offenses(s)
contained therein which also authorized the imposition of a bad conduct or
dishonorable discharge.  He 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.

6.  On 27 June 1983, the appropriate authority approved the request and
directed the applicant receive a discharge under other than honorable
conditions.

7.  On 8 July 1983, 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 in lieu of trial by court-
martial.  He had completed a total of 5 years, 2 months, and 17 days of
creditable active service.  His DD Form 214 for the period ending 8 July
1983 does not show any lost time.  He was given a reenlistment (RE) code of
3.

8.  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.

9.  On 20 September 1985, the Army Discharge Review Board (ADRB) denied the
applicant's petition to upgrade his discharge.

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.

12.  Pertinent Army regulations provide that prior to discharge or release
from active duty individuals will be assigned RE codes based on their
service records or the reason for discharge.  Army Regulation 601-210
covers eligibility criteria, policies and procedures for enlistment and
processing into the Regular Army (RA) and the U.S. Army Reserve.  Chapter 3
of that regulation prescribes basic eligibility for prior service
applicants for enlistment.  That chapter includes a list of armed forces RE
codes, including RA RE codes.

13.  RE code 3 applies to persons not qualified for continued Army service,
but the disqualification is waivable.

14.  Recruiting personnel have the responsibility for initially determining
whether an individual meets current enlistment criteria.  They are required
to process a request for waiver under the provisions of chapter 4, Army
Regulation 601-210.

15.  The maximum enlistment age was recently changed to 42.

16.  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 evidence of record does not support the applicant’s contention that
he was “forced” to accept a discharge for the convenience of the
government.  The court-martial charges are not available and the specific
reason for his discharge is not known; however, the evidence of record
shows that his 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.  In the absence of evidence to the contrary, it is presumed that the
discharge proceedings were conducted in accordance with law and regulations
applicable at the time and that the applicant’s characterization of service
as under other than honorable conditions appropriately characterizes his
military service for the enlistment ending 8 July 1983.

3.  The applicant was given an RE code of 3.  Based upon that RE code,
recruiting officials are required to process a request for waiver of any
enlistment disqualifications.  It is noted that the applicant might have a
problem meeting the enlistment maximum age criteria even if he were granted
a waiver for his reason for separation and discharge under other than
honorable conditions.

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 20 September 1985.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 19 September 1988.
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

__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                 |AR20070001487                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070710                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19830708                                |
|DISCHARGE AUTHORITY     |AR 635-200 ch 10                        |
|DISCHARGE REASON        |A70.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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