RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        4 October 2007
      DOCKET NUMBER:  AR20070007442


      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. Susan A. Powers               |     |Chairperson          |
|     |Mr. Edward E. Montgomery          |     |Member               |
|     |Mr. Qawiy A. Sabree               |     |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.

2.  The applicant states, in effect, his motives for his request are
personal, and he desires to gain no benefit from the Army or Department of
Veterans Affairs (VA).  He states that he did in fact go absent without
leave (AWOL); however, the circumstances leading to this offense are what
he believes are mitigating.  He claims that during his initial training, he
admitted to the Drill Instructor that he had made a mistake, but he was
dismissed and ordered to complete training.  He states that after being
assigned to Germany he was fine until his future wife was separated from
the Army in basic training due to medical reasons, at which time he began
drinking alcohol more heavily and became discontent with the service.  He
married his ex-wife in June of 1984 and in August or September of that
year, her mother forced her to tell me she had taken residence with another
man.  He claims his focus was completely lost and he began drinking quite
heavily.

3.  The applicant states that in November 1984, he realized he had a
substance abuse issues and requested his first sergeant (1SG) admit him to
substance abuse treatment.  The 1SG became enraged at this request, denied
it and confined him to quarters.  He states that he felt trapped and in his
desperation and ignorance, he went AWOL.  He claims that in the Spring of
1985, he turned himself in at Fort Sheridan, Illinois, and was discharged
at Fort Knox, Kentucky.  He states that when asked if he wanted to continue
in service and press charges against his 1SG, he declined, once again out
of ignorance.  He states that after his separation, his parents sought
psychological help for him and the therapist diagnosed severe depression.
He states that he drifted away from his family and was homeless off and on
for several years.  In 1989, he began recovery in earnest and at present,
he is a successful business owner, and is looking to clean up some loose
ends.

4.  The applicant concludes by stating that had his 1SG allowed him to get
the counseling due him, he would not have gone AWOL.  He states that as for
what his service would have been subsequent to counseling, no one can say.
He claims that since his separation, he has been a supporter of the
military, despite his personal experience.  He states that of course his
request is that his discharge be upgraded to an honorable discharge (HD),
but he also realizes that this may not be possible and that a general,
under honorable conditions discharge (GD) would be most appropriate, as his
condition at the time may have not allowed him to finish his term of
service.

5.  The applicant provides a self-authored statement 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 25 May 1983.  He was trained in and awarded military
occupational specialty (MOS) 13B (Cannon Crewman) and the highest rank he
attained while serving on active duty was specialist four (SP4).

3.  The applicant's record shows that during his active duty tenure, he
earned the Army Service Ribbon, Sharpshooter Marksmanship Qualification
Badge with Rifle Bar, and 1st Class Qualification Badge with Hand Grenade
Bar.  His record documents no acts of valor, significant achievement or
service warranting special recognition.

4.  On 3 December 1984, the applicant departed AWOL from his unit in
Germany.  He remained away for 91 days until returning to military control
at
Fort Knox, Kentucky, on 4 March 1985.

5.  On 11 March 1985, 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
3 December 1984 through on or about 4 March 1985.

6.  On 11 March 1985, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
maximum permissible punishment under the UCMJ, of the possible effects of
an UOTHC discharge, and of the procedures and rights available to him.
Subsequent to this counseling, he requested discharge for the good of the
service in lieu of trial by court-martial.
7.  In his request, he acknowledged that by requesting discharge, he was
acknowledging that he was guilty of the charge against him or of a lesser
included offense therein contained which authorized the imposition of a bad
conduct or dishonorable discharge.  He further stated that under no
circumstances did he desire further rehabilitation, because he had no
desire to perform further military service.  He further stated that he
understood that if his request for discharge were approved, he could
receive an UOTHC discharge, and he was advised that as a result, 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,
and that he could be deprived of his rights and benefits as a veteran under
both State and Federal law.  He further indicated that he understood he
could encounter substantial prejudice in civilian life by reason of an
UOTHC discharge.  He also elected not to submit a statement in his own
behalf.

8.  On 15 April 1985, the separation authority approved the applicant's
request for discharge, directed he receive an UOTHC discharge, and directed
that he be reduced to the lowest enlisted grade.  On 3 May 1985, the
applicant was discharged accordingly.  The separation document (DD Form
214) he was issued at the time shows he completed a total of 1 year, 8
months, and 8 days of creditable active military service and that he
accrued 91 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 (Active Duty Enlisted Administrative
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 trial by court-martial.  The regulation stipulates that
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 GD if such is merited by the Soldier's overall record during the
current enlistment.  An HD 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 claim that his discharge was unjust because he was
denied assistance and counseling by his 1SG was carefully considered.
However, there is insufficient evidence to support this claim.  The
evidence of record fails to give any indication that the applicant ever
sought or was denied counseling or assistance for an alcohol abuse problem.


2.  The evidence of record confirms the applicant 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.  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 he received was
normal and appropriate under the regulatory guidance, and his short and
undistinguished record of service clearly did not support the issue of a GD
or HD by the separation authority at the time, nor does it support an
upgrade at this late date.

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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

SAP____  __EEM_ _  __AMC   _  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.




                                    __Susan A. Powers___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070007442                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/09/DD                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1985/05/03                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |In Lieu of C-M                          |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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