RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 November 2007
      DOCKET NUMBER:  AR20070006161


      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. Kenneth L. Wright             |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 he be provided separation pay
and back pay from 1 October 2000 through 15 September 2001; and that his
record be corrected to show his entitlement to the Armed Forces
Expeditionary Medal (AFEM), Army Achievement Medal (AAM), Army Good Conduct
Medal (AGCM), and National Defense Service Medal (NDSM).

2.  The applicant states, in effect, that he is due back pay from 1 October
2000 through 15 September 2001, and that he is owed separation pay.  He
further states that he was awarded the AAM in Korea, the AGCM in 2002, and
the AFEM for Kuwait in 2001, and is entitled to the NDSM.

3.  The applicant provides no additional documentary evidence in support of
his 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's record shows that he enlisted in the Regular Army and
entered active duty on 15 July 1999.  His record shows he was trained in,
awarded and served in military occupational specialty (MOS) 11B
(Infantryman).

3.  The applicant's Enlisted Records Brief (ERB) shows he served in Korea
from 6 January 2000 through 5 January 2001, and that he served at Fort
Hood, Texas, from 8 January 2001 through the date of his separation.  It
also shows that during his active duty tenure, he earned the National
Defense Service Medal, Overseas Service Ribbon, and the Army Service
Ribbon.


4.  On 31 January 2003, the applicant was discharged under the provisions
of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.
The separation document (DD Form 214) he was issued at the time shows he
received an under other than honorable conditions (UOTHC) discharge and
that he had completed a total of 3 years, 6 months, and 16 days of
creditable active duty service.

5.  The applicant's record is void of and he has failed to provide pay
records for the period in question.

6.  Title 10 of the United States Code, Section 1174 provides for the
payment of separation pay upon involuntary discharge or release from active
duty.  It states, in pertinent part, that a regular enlisted member of an
armed force who is discharged involuntarily or as the result of the denial
of the reenlistment of the member and who has completed six or more, but
less than 20, years of active service immediately before that discharge is
entitled to separation pay unless the Secretary concerned determines that
the conditions under which the member is discharged do not warrant payment
of such pay.  The governing Army policy on separation pay stipulates that
Soldiers separated with a service characterization of UOTHC are not
eligible for separation pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim of entitlement to back pay for the period
1October 2000 through 15 September 2001, and for payment of separation pay
was carefully considered.  However, the evidence of record confirms the
applicant was separated with an UOTHC discharge; therefore, under the
governing Army policy, he is not entitled to separation pay.

2.  Further, the applicant's record is void of any pay records for the
period
1 October 2000 through 15 September 2001, and the applicant has failed to
provide pay record or any other documentary evidence that would support his
request for back pay for the period in question.  As a result, absent any
evidence that he was not properly paid during this period, there is an
insufficient evidentiary basis to support granting this portion of the
requested relief.

3.  The applicant's record confirms that during his tenure on active duty,
he was awarded the NDSM, ASR and OSR, and these awards are properly
documented on his DD Form 214.  The record fails to show and he has failed
to provide any evidence to show he was ever awarded the AGCM, AAM, or AFEM
for service in Kuwait.  As a result, there is an insufficient evidentiary
basis to support adding these awards to his record and separation document
at this time.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__KLW __  __LMD__  __MJF __  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.




                                  _____Kenneth L. Wright_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070006161                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/11/06                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |2003/01/31                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |In Lieu of C-M                          |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |128.0000                                |
|2.                      |107.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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