RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           2 February 2006
      DOCKET NUMBER:  AR20050010272


      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.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Yolanda Maldonado             |     |Chairperson          |
|     |Mr. Michael J. Flynn              |     |Member               |
|     |Mr. Dennis J. Phillips            |     |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 was granted a hardship discharge
based on the illness of his grandmother, but his first sergeant held up his
release.  He claims he went home anyway.  He states that he regrets not
handling the situation better, but he put his life on the line for his
country, and this was all stripped away by his discharge.  He requests that
his accomplishments be reviewed and that he be given back his dignity.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 14 February 1986.  The application submitted in this case
was received on 15 July 2005.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s record shows he enlisted in the Regular Army and
entered active duty on 22 February 1983.  He was trained in, awarded, and
served in military occupational specialty (MOS) 16S (MANPADS Crewman), and
the highest rank he attained while serving on active duty was specialist
four (SP4).

4.  The applicant’s record shows that during his active duty tenure, he
earned the Driver’s Badge; Army Service Ribbon; and Marksmanship Badges for
the Rifle, Pistol, and Hand Grenade.  The record documents no acts of
valor, significant achievement, or service warranting special recognition.


5.  The applicant’s Military Personnel Records Jacket (MPRJ) is void of any
documents that indicate the applicant ever requested, or was granted a
hardship discharge.

6.  The applicant’s disciplinary history includes his acceptance of
nonjudicial punishment (NJP) under the provisions of Article 14 of the
Uniform Code of Military Justice (UCMJ) on 29 March 1985, for wrongfully
possessing marijuana.  His punishment for this offense included a reduction
to private first class (PFC), forfeiture of $150.00 per month for two
months and 45 days of extra duty.

7.  On 8 May 1985, the applicant departed absent without leave (AWOL) from
his unit at Fort Riley, Kansas.  On 6 June 1985, he was dropped from the
rolls of his organization.

8.  On 20 December 1985, the applicant was apprehended by civilian
authorities in Indianapolis, Indiana, and he was charged with criminal
conversion.

9.  On 26 December 1985, after posting bond with the civilian court, the
applicant was returned to military control at the Personnel Control
Facility (PCF),
Fort Knox, Kentucky.

10.  On 2 January 1986, a Charge Sheet (DD Form 458) was prepared
preferring a court-martial charge against the applicant for violating
Article 86 of the UCMJ by being absent without leave (AWOL) from on or
about 8 May 1985 through on or about 26 December 1985.

11.  On 3 January 1986, 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 UOTHC 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.

12.  In his request for discharge, the applicant also indicated that he
understood that by requesting discharge, he was admitting guilt to the
charges 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.

13.  On 14 January 1986, the separation authority approved the applicant’s
request for discharge and directed that he receive an UOTHC discharge.  On
14 February 1986, the applicant was discharged accordingly.

14.  The DD Form 214 issued to the applicant on 14 February 1986 shows he
was separated under the provisions of chapter 10, Army Regulation 635-200,
for the good of the service in lieu of trial by court-martial.  This
document further shows he completed a total of 2 years, 4 months, and 5
days of creditable active military service, and that he accrued 232 days of
time lost due to AWOL and confinement.

15.  The record gives no indication that the applicant applied to the Army
Discharge Review Board (ADRB) requesting an upgrade of his discharge within
that board’s 15-year statute of limitations.

16.  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 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.  A
discharge UOTHC is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that he was unjustly denied a hardship
discharge, and that his overall record of service supports an upgrade of
his discharge was carefully considered.  However, there is insufficient
evidence to support these claims.

2.  The applicant’s record is void of any documentation showing he ever
requested or was granted a hardship discharge.  However, it does show that
he voluntarily requested an administrative discharge in order to avoid a
trial by court-martial that could have resulted in his receiving a punitive
discharge.

3.  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.  In
his request for discharge, he admitted guilt to the charge against him, or
of a lesser included offense, that also authorized the imposition of a bad
conduct or dishonorable discharge.  All requirements of law and regulation
were met and that the rights of the applicant were fully protected
throughout the separation process.  Further, 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
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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 February 1986, the date of his
discharge.  Therefore, the time for him to file a request for correction of
any error or injustice expired on 13 February 1989.  He failed to file
within the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___YM __  ___MJF     ___DJP _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            ____Yolanda Maldonado____
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050010272                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/02/02                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1986/02/14                              |
|DISCHARGE AUTHORITY     |AR 635-200  C10                         |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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