RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 July 2007
      DOCKET NUMBER:  AR20070001965


      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:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Jose A. Martinez              |     |Member               |
|     |Mr. William F. Crain              |     |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 a general, under honorable
conditions discharge (GD) or an honorable discharge (HD).

2.  The applicant states, in effect, that due to injuries to his back,
family, medical and emotional problems, he was unable to perform his
duties.  He claims he tried to adjust, but was unable to perform.

3.  The applicant provides no additional documentary evidence in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that  occurred on 26 February 1982, the date of his discharge.  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's record shows that he enlisted in the Regular Army and
entered active duty on 16 January 1980.  He was trained in, awarded and
served in military occupational specialty (MOS) 36K (Tactical Wire
Operations Specialist), and private first class (PFC) is the highest rank
he attained while serving on active duty.

4.  The applicant's Personnel Qualification Record (DA Form 2-1) shows he
earned the Army Service Ribbon, Parachutist Badge, and Expert Marksmanship
Qualification Badge with Rifle Bar during his active duty tenure.  His
record documents no acts of valor, significant achievement, or service
warranting special recognition.

5.  The applicant's disciplinary history includes his accrual of 33 days of
time lost due to being absent without leave (AWOL) on seven separate
occasions between 6 May 1981 and 1 February 1982.  It also includes his
acceptance of non-judicial punishment (NJP) under the provisions of Article
15 of the Uniform Code of Military Justice (UCMJ) on six separate occasions
between 29 April and 23 December 1981.

6.  On 18 February 1982, after a court-martial charge was preferred against
him, the applicant consulted with legal counsel and was advised of the
basis for the contemplated trial by court-martial and of the maximum
permissible punishment authorized under the UCMJ; of the possible effects
of an UOTHC discharge; and of the procedures and rights available to him.
Subsequent to this counseling, the applicant requested to be discharged for
the good of the service under the provisions of chapter 10, Army Regulation
635-200, in lieu of trial by
court-martial.

7.  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).

8.  On 23 February 1982, the separation authority approved the applicant's
request for discharge, and directed he receive an UOTHC discharge.  On
26 February 1982, the applicant was discharged accordingly.  The separation

document (DD Form 214) he was issued at the time confirms he completed
2 years and 8 days of creditable active military service, and had accrued
35 days of time lost due to AWOL.

9.  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.

10.  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 contention that his ability to serve was impaired by
back injuries, and family, medical and emotional problems was carefully
considered.  However, these factors are not sufficiently mitigating to
support granting the requested relief.

2.  The evidence of record confirms the applicant had an extensive
disciplinary history, and his record documents no acts of valor,
significant achievement or service warranting special recognition.  It also
confirms he 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.

3.  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.

4.  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.

5.   Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 February 1982, the date of his
discharge.  Thus, the time for him to file a request for correction of any
error or injustice expired on 25 February 1985.  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

___JEA  _  __JAM       __WFC__  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.




                                  _____James E. Anderholm __
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070001965                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/07/12                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1982/02/26                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|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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