RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 January 2008
      DOCKET NUMBER:  AR20070011747


      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. Gerald J. Purcell             |     |Chairperson          |
|     |Mr. Donald L. Lewy                |     |Member               |
|     |Mr. David W. Tucker               |     |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, an upgrade of his under other than
honorable conditions (UOTHC) discharge.

2.  The applicant states, in effect, that he has paid for his mistakes for
25 years.

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 13 October 1979.  He was trained in and awarded
military occupational specialty (MOS) 11B, and specialist four (SP4) is the
highest rank he attained while serving on active duty.  His record
documents no acts of valor or service warranting special recognition.

3.  The applicant's disciplinary history includes his acceptance of non-
judicial punishment (NJP) under the provisions of Article 15 of the Uniform
Code of Military Justice (UCMJ) on 2 June 1983, for failing to go to his
appointed place of duty at the prescribed time.  His punishment for this
offense was a forfeiture of $100.00 and 7 days of extra duty.

4.  On 23 June 1983, while serving in Vicenza, Italy, the applicant
departed absent without leave (AWOL) from his unit.  He remained away for
129 days until returning to military control at Fort Dix, New Jersey, on 31
October 1983, and on 1 November 1983, a Charge Sheet (DD Form 458) was
prepared preferring a court-martial charge against him for violating
Article 86 of the UCMJ by being AWOL from on or about 23 June through on or
about 31 October 1983.

5.  On 2 November 1983, the applicant consulted with counsel and was
advised of the basis for the contemplated trial by court-martial and the
maximum permissible punishment authorized under the UCMJ, of the possible
effects of an UOTHC discharge and of the rights available to him.  He
voluntarily requested discharge from Army for the good of the service in
lieu of trial by court-martial.  In his request, he acknowledged his
understanding that by submitting a request for discharge, he was
acknowledging that he was guilty of the charge against him, or of a lesser
included offense that also authorized the imposition of a bad conduct or
dishonorable discharge.  He also acknowledged that he understood that if he
received an UOTHC discharge, he would be deprived of many or all Army and
veterans benefits.  He also elected not to submit a statement in his own
behalf.

6.  On 17 November 1983, the separation authority approved the applicant's
request for discharge and directed he receive an UOTHC discharge and that
he be reduced to the lowest enlisted grade.  On 29 December 1983, the
applicant was discharged accordingly.  The separation document (DD Form
214) he was issued shows that he completed a total of 3 years, 10 months,
and 9 days of creditable active military service and that he accrued 129
days of time lost due to AWOL.

7.  There is no indication that the applicant applied to the Army Discharge
Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-
year statute of limitations.

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.
Although the separation authority may authorize an honorable discharge (HD)
or general, under honorable  discharge (GD) if warranted by the member's
overall record of service, an UOTHC discharge is normally considered
appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his UOTHC discharge should be upgraded
because he has paid for his mistakes for 25 years was carefully considered.
 However, this factor is not sufficiently mitigating to support granting
the requested relief at this late date.

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 applicant's record documents no acts of valor or service warranting
special recognition.  However, it does show that he 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 overall record of
service did not support an HD or GD 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__GJP  __  __DLL __  __DWT__  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.




                                  _____Gerald J. Purcell___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070011747                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2008/01/30                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1983/12/29                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |In Lieu of C-M                          |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Mitrano                             |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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