RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 January 2008
      DOCKET NUMBER:  AR20070012462


      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, that his under other than honorable
conditions (UOTHC) discharge be upgraded to a general, under honorable
conditions discharge (GD).

2.  The applicant states, in effect, he had a family emergency related to
his son and was supposed to receive a GD in order to be allowed to raise
his family and care for his son and terminally ill mother.  He states he is
requesting an upgrade of his discharge because he is permanently disabled
and may only have a few years to live and is not working and has no medical
benefits.

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 United States Army
Reserve on 28 August 1980, and was ordered to active duty for training on
20 September 1980.

3.  The applicant's Personnel Qualification Record (DA Form 2-1) confirms
he never advanced beyond the rank of private/E-1 (PV1) while serving on
active duty.  His record also documents no acts of valor, significant
achievement, or service warranting special recognition.

4.  On 5 October 1980, while in basic combat training at Fort Jackson,
South Carolina, the applicant was declared absent without leave (AWOL) from
his unit and on 4 November 1980, he was dropped from the rolls of the
organization.
5.  On 5 February 1981, after being apprehended by civil authorities, the
applicant was returned to military control at the Personnel Control
Facility (PCF), Fort Knox, Kentucky.

6.  On 18 February 1981, a Charge Sheet (DD Form 459) was prepared
preferring a court-martial charge against the applicant for violating
Article 86  of the Uniform Code of Military Justice by being AWOL from on
or about 5 October 1980 through on or about 5 February 1981.

7.  On 19 February 1981, 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.

8.  In his request, the applicant confirmed that he understood 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.  The applicant
submitted a statement in his own behalf with his discharge request in which
he indicated that the reason he was requesting discharge was that he just
could not adjust to military life.

9.  On 10 March 1981, the separation authority approved the applicant's
request for discharge and directed he receive an UOTHC discharge.  On 7
April 1981, the applicant was discharged accordingly.  The separation
document (DD Form 214) he was issued at the time shows he completed a total
of 4 months and
3 days of creditable active military service and that he accrued 123 days
of time lost due to AWOL.

10.  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.
11.  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 contention that his discharge should be upgraded
because he was told he would receive a GD in order to care for his son and
terminally ill mother 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 a
hardship discharge due to family issues or emergencies.

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, and that he confirmed the reason for
his discharge request was that he just could not adjust to military life.
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

__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                 |AR20070012462                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2008/01/24                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1981/04/07                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|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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