RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         13 April 2006
      DOCKET NUMBER:  AR20050014127


      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, an upgrade of his under other than
honorable conditions (UOTHC) discharge.

2.  The applicant states, in effect, he was honorably discharged in 1981
and reenlisted.  He states that when he came up for assignment to Alaska,
he had a mentally challenged wife and a 3 month old child in the care of
someone with a Post Traumatic Stress Disorder (PTSD).  He claims his unit
commander left him with no alternatives, and he elected to stay with his
family.  He states that up until that time, he had been a model Soldier and
that he deeply regrets that he had to make the decision he made.  He states
that he desperately needs veteran's benefits and is being refused these
benefits because of his UOTHC discharge.

3.  The applicant provides no additional 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 19 December 1983.  The application submitted in this case
is dated 19 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 enlisted in the Regular Army and
entered active duty on 6 September 1977.  He was trained in, awarded, and
served in military occupational specialty (MOS) 35K (Avionic Mechanic), and
the highest rank he attained while serving on active duty was specialist
(SPC).  His record documents no acts of valor, significant achievement, or
service warranting special recognition.

4.  On 18 January 1983, a Charge Sheet (DD Form 458) was prepared
preferring court-martial charges against the applicant for violating
Article 86 and Article 92 of the Uniform Code of Military Justice (UCMJ).
Charge I was for two specifications of violating Article 86 by being AWOL
from on or about 20 November through on or about 17 December 1982, and from
on or about 21 December 1982 through on or about 5 January 1983.  Charge II
was for violating Article 92 by disobeying a lawful order.

5.  On 19 January 1983, 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.

6.  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.

7.  On 27 January 1983, the applicant's unit commander completed a 1st
Endorsement in which he confirmed he had personally interviewed the
applicant on that date.  He indicated that the applicant stated he was
aware of the nature of the interview and the consequences of an UOTHC
discharge.  He stated that the applicant also stated that he went AWOL
because of family problems, and because he was in the overweight program
and was not losing weight, which added additional stress on him.  The unit
commander also stated that the applicant desired to be separated and that
he had been apprehended by civil authorities at Fort Benning, Georgia.  As
a result of the applicant's attitude, the unit commander recommended he be
discharged under the provisions of chapter 10, Army Regulation 635-200.

8.  On 7 December 1983, 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 19 December 1983, the
applicant was discharged accordingly.  The DD Form 214 he was issued
confirms 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 6 years, 2
months, and 3 days of creditable active military service, and that he
accrued 41 days of time lost due to AWOL.

9.  There is no indication that the applicant requested an upgrade of his
discharge from the Army Discharge Review Board within its 15-year statute
of limitations.

10.  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 under other than honorable conditions is normally considered
appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that serious family problems impaired his
ability to serve and contributed to his misconduct was carefully
considered, and that he is in desperate need of veteran's benefits was
carefully considered.  However, these factors are not sufficiently
mitigating to warrant granting the requested relief.

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.  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 the rights of the applicant were fully protected throughout
the separation process.

3.  The record contains an interview conducted with the applicant during
the separation process.  In this interview, he made no mention of a
mentally challenged wife, and he admitted that he was under additional
stress because he was unable to meet the weight standard even though he was
enrolled in the weight control program.  The applicant also acknowledged in
his discharge request that he understood the ramifications of an UOTHC
discharge, and that he would likely lose entitlement to both Federal and
State veteran's benefits.  Even after receiving legal counseling and
counseling from his commander, he still indicated he desired to be
discharged under the provisions of chapter 10, Army Regulation 635-200.  As
a result, there is an insufficient evidentiary basis to support an upgrade
of his discharge 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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 19 December 1983, the date of his
discharge.  Therefore, the time for him to file a request for correction of
any error or injustice expired on 18 December 1986.  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                 |AR20050014127                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/04/13                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1983/12/19                              |
|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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