RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 August 2007
      DOCKET NUMBER:  AR20070004039


      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             |
|     |Ms. Loretta D. Gulley             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Richard T. Dunbar             |     |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 Under Other Than Honorable Conditions
(UOTHC) discharge be upgraded.

2.  The applicant states, in effect, that there is no error to his record
but he is attempting to change his discharge status and that prior to his
discharge he was involved in an accident where death occurred.

3.  The applicant provides no additional documents in support of this
application. 

CONSIDERATION OF EVIDENCE:

1.  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 also allows the
Army Board for Correction of Military Records (ABCMR) to excuse an
applicant’s failure to timely file within the 3-year statute of limitations
if the ABCMR determines it would be in the interest of justice to do so.
While it appears the applicant did not file within the time frame provided
in the statute of limitations, the ABCMR has elected to conduct a
substantive review of this case and, only to the extent relief, if any, is
granted, has determined it is in the interest of justice to excuse the
applicant’s failure to timely file.  In all other respects, there are
insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant is requesting correction of an alleged error or injustice
which occurred on 16 May 1989, the date of his release from active duty.
The application submitted in this case is dated 8 March 2007.

3.  The applicant enlisted in the Regular Army on 16 May 1989, for a period
of three years.  He completed the required training and was awarded
military occupational specialty 75D (Personnel Records Specialist).  The
highest rank he attained while serving on active duty was Staff Sergeant (E-
6).

4.  The applicant's record documents no acts of valor, significant
achievement or service warranting special recognition.

5.  On 16 February 1989, charges were preferred against the applicant for
wrongful use of cocaine, a controlled substance between 7 November 1988 and
17 November 1988.

6.  On 28 April 1989, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
maximum permissible punishment authorized under the UCMJ, the possible
effects of an under other than honorable conditions discharge, and of the
procedures and rights that were available to him.  Subsequent to receiving
this legal counsel, the applicant voluntarily requested discharge for the
good of the service in lieu of trial by court-martial.  The applicant did
not submit a statement on his behalf.

7.  In his request for discharge, the applicant indicated that he
understood that by requesting discharge, he was admitting guilt to the
charge against him, or of a lesser included offense, that also authorized
the imposition of a bad conduct or dishonorable discharge.  He further
acknowledged he understood that if his discharge request was approved, he
could be deprived of many or all Army benefits, that he could be ineligible
for many or all benefits administered by the Department of Veterans Affairs
(VA), and that he could be deprived of his rights and benefits as a veteran
under both Federal and State law.  The applicant also declined a separation
physical examination.

8.  On 2 May 1989, the separation authority directed that the applicant be
separated under the provisions of paragraph 10, Army Regulation 635-200,
for the good of the Army and that he receive Undesirable Discharge
Certificate.  On 16 May 1989, the applicant was discharged accordingly.
The DD Form 214 (Certificate of Release or Discharge From Active Duty)
issued to him at the time, confirms the applicant completed a total of 12
years, 2 months, and 1 day of creditable active military service.

9.  Army Regulation 635-200 (Personnel Separations) 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.  Although an honorable or general discharge is
authorized, a discharge under other than honorable conditions is normally
considered appropriate.

10.  There is no indication that the applicant applied to the Army
Discharge Review Board for an upgrade of his discharge within its 5-year
statute of limitations.

11.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-
martial.  An undesirable discharge is normally considered appropriate.

12.  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 (emphasis added), or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.  Whenever there is doubt, it is to be resolved in favor of
the individual.

13.  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 contention of the applicant was carefully considered and found to
be without merit.

2.  The evidence of record shows that the applicant accepted discharge in
lieu of court martial.

3.  The evidence of record confirms that all requirements of law and
regulation were met and the applicant’s rights were fully protected
throughout the separation process.  The record further shows the
applicant’s discharge accurately reflects his overall record of
undistinguished service.

4.  In order to justify correction of a military record the applicant must
satisfactorily show, or it must otherwise satisfactorily appear, that the
record is in error or unjust.  The applicant has failed to submit
sufficient evidence that would satisfy this requirement.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___LE___  ___JTM__  ___RTD_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




                                         __Lester Echols_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070004039                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/08/23                              |
|TYPE OF DISCHARGE       |(UOTHC,)                                |
|DATE OF DISCHARGE       |19890516                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 10. . . . .         |
|DISCHARGE REASON        |For the good of the service – in lieu of|
|                        |court-martial                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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