RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         13 April 2006
      DOCKET NUMBER:  AR20050013538


      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:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Mr. David K. Hassenritter         |     |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 an honorable discharge (HD).

2.  The applicant states, in effect, that at the time of his discharge, he
and his wife were separated, and she was pregnant.  He went to Fort Polk,
Louisiana and got into some minor trouble, which resulted in his being
demoted in rank.  He states that because he was married, he was not allowed
to live on base.  This required him to take care of his own expenses for
living off post, and for those of his wife, who was pregnant and living at
home.  He claims he could not afford to continue doing that, and a Judge
Advocate General (JAG) officer suggested he accept a discharge and return
home to take care of his family.  He claims the JAG officer told him his
discharge could be upgraded in two years.

3.  The applicant provides a Statement In Support Of Claim (VA Form 21-
4138) and Separation Document (DD Form 214) in support of his application.


CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 26 July 1988.  The application submitted in this case was
received on 16 September 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 that he initially enlisted in the Regular
Army (RA) and entered active duty on 6 January 1978.  He was trained in and
awarded military occupational specialty (MOS) 63Y (Track Vehicle Mechanic).


4.  On 17 December 1980, the applicant was honorably separated after
completing 2 years, 11 months, and 12 days of active military service.  The
separation document he was issued confirms he held the rank of specialist
four (SP4) on the date of his release from active duty (REFRAD), and that
he was transferred to the United States Army Reserve (USAR).
5.  The record shows the applicant served in the USAR until reenlisting in
the RA and reentering active duty, in the rank of private first class (PFC,
on 18 February 1987.  He was retrained in MOS 63G (Fuel and Electrical
Systems Repairer).

6.  The applicant's Personnel Qualification Record (DA Form 2-1) shows that
he earned the following awards during his military service tenure:  Army
Good Conduct Medal (AGCM); Driver and Mechanic Badge with T (Driver) Bar;
and Army Service Ribbon (ASR).  His record documents no acts of valor,
significant achievement, or service warranting special recognition.

7.  On 12 March 1987, while attending advanced individual training (AIT) in
MOS 63G, the applicant departed absent without leave (AWOL) from his
training unit at Aberdeen Proving Ground, Maryland.  He remained away for
21 days until returning to military control on 1 April 1987.

8.  On 21 January 1988, while serving at Fort Polk, the applicant accepted
nonjudicial punishment (NJP) under the provisions of Article 15 of the
Uniform Code of Military Justice (UCMJ), for failing to go to his appointed
place of duty at the prescribed time.  His punishment included a reduction
to PFC and a forfeiture of $228.00 (Suspended).

9.  On 26 April 1988, the suspended reduction and forfeiture of the 21
January 1988 NJP was vacated based on the applicant's wrongful use of
marijuana, and the reduction and forfeiture were duly executed.

10.  On 20 April 1988, the applicant's commander notified the applicant
that he was considering whether the applicant should be punished under
Article 15 based on his wrongful use of marijuana between 15 February and
15 March 1988.

11.  On 20 May 1988, the applicant elected not to accept NJP and demanded a
trial by court-martial.

12.  On 10 June 1988, a Charge Sheet (DD Form 458) was prepared preferring
a court-martial charge against the applicant for violating Article 117a of
the UCMJ by wrongfully using marijuana, a controlled substance, between 15
February and 15 March 1988.

13.  On 5 July 1988, the applicant was confined by civil authorities.  He
returned to military control on 6 July 1988.

14.  On 12 July 1988, the applicant consulted with legal counsel and was
advised of the basis of the contemplated court-martial, the maximum
permissible punishment authorized under the UCMJ, of the possible effects
of an UOTHC discharge, and of the procedures and rights available to him.
Subsequent to this counseling, the applicant elected to voluntarily
requested discharge for the good of the service in lieu of trial by court-
martial.

15.  In his request for discharge, the applicant also indicated that he
understood that by requesting discharge, he was admitting guilt to the
charge(s) 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.  The applicant
stipulated that he did not desire further rehabilitation because he had no
desire to perform further military service.

16.  On 15 July 1988, the separation authority approved the applicant’s
request for discharge and directed that he receive an UOTHC discharge, and
that he be reduced to the lowest enlisted grade.  On 26 July 1988, the
applicant was discharged accordingly.  The DD Form 214 he was issued
confirms he completed a total of 6 years, 3 months, and 79 days of
creditable active military service, and that he accrued 23 days of time
lost due to AWOL and confinement.

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

18.  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 marital and financial problems he was
experiencing at the time impaired his service ability, and that he was told
his discharge would be upgraded in two years along with the supporting
documents he submitted were carefully considered.  However, these factors
are not sufficiently mitigating to warrant granting the requested relief.
Further, the applicant is advised that the Army has never had a policy to
automatically upgrade discharges after a given period of time.

2.  The evidence of record shows that after declining to accept NJP for his
wrongful use of marijuana and demanding a trial by court-martial, the
applicant was charged with the commission of an offense punishable under
the UCMJ with a punitive discharge.  After consulting with defense counsel,
he voluntarily requested discharge from the Army in lieu of trial by court-
martial.  The record further confirms all requirements of law and
regulation were met and that the rights of the applicant were fully
protected throughout the separation process.

3.  Further, the applicant's honorable active duty service between 1978 and

1980 is documented in the DD Form 214 he was issued on 17 December 1980,
and his current discharge accurately reflects the character of his service
during the period of enlistment for which it was issued.  Therefore, it
would not be appropriate to grant the requested relief at this time.

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 26 July 1988, the date of his final
separation.  Therefore, the time for him to file a request for correction
of any error or injustice expired on 25 July 1991.  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

___RTD _  ___PHM_  __DKH__  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.




                                  _____Richard T. Dunbar  __
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050013538                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/04/13                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1988/07/26                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|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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