RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 December 2004
      DOCKET NUMBER:  AR20040000342


      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             |
|     |Ms. Jeanie M. Biggs               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Jennifer L. Prater            |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Ms. Diane J. Armstrong            |     |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 undesirable be upgraded to
a general or an honorable discharge.

2.  The applicant states, in effect, that the military failed to detect
that he had hepatitis B.  He stated that he requested to be discharged so
that a civilian doctor could treat him.

3.  The applicant does not provide any documents in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 15 August 1972.  The application submitted in this case is
dated 24 March 2004.

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 limitation 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.  On 22 January 1971, the applicant enlisted in the Army for a period of
          2 years.  He was awarded the military occupational specialty of
armor recon specialist and was assigned to Germany.

4.  On 18 October 1971, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice for failure to go to his
appointed place of duty.

5.  On 24 July 1972, court-martial charges were preferred against the
applicant for being absent without leave (AWOL) from 30 May to 19 July
1972.

6.  On 26 July 1972, after consulting with counsel, the applicant submitted
a request for discharge for the good of the service under the provisions of
Army Regulation 635-200, chapter 10.  He indicated in his request that he
understood he could be discharged under other than honorable conditions and
furnished an Undesirable Discharge Certificate; that he may be deprived of
many or all Army benefits; that he may be ineligible for many or all
benefits administered by the Department of Veterans Affairs; and that he
may be deprived of his rights and benefits as a veteran under both Federal
and State law.  He also acknowledged that he may expect to encounter
substantial prejudice in civilian life because of an under other than
honorable discharge.  Additionally, he elected to not submit a statement in
his own behalf.

7.  The applicant’s commander recommended that the applicant’s request for
discharge be approved and that he be given an undesirable discharge.

8.  On 10 August 1972, the separation authority approved the applicant’s
request for discharge and directed that he be discharged for the good of
the service under other than honorable conditions and furnished an
Undesirable Discharge Certificate.

9. Accordingly, the applicant was discharged under other than honorable
conditions on 15 August 1972 under the provisions of Army Regulation
635-200, chapter 10, for the good of the service in lieu of court-martial.
His     DD Form 214 shows that he had completed 1 year, 5 months, and 3
days of active service and had 50 days of lost time.

10.  There is no indication in the available records to show that the
applicant applied to the Army Discharge Review Board within its 15-year
statute of limitations.

11.  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. However, at the time of the applicant's separation the
regulation provided for the issuance of an undesirable discharge.

12.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.  Whenever there is doubt, it is to be resolved in favor of
the individual.

13.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence or indication that the applicant had hepatitis or
a medical condition at the time of enlistment.

2.  The applicant voluntarily requested separation from the Army to avoid
trial by court-martial.  In doing so, he admitted guilt to the stipulated
offense.  Additionally, the applicant requested a discharge to avoid the
possibility of a punitive discharge.  There is no indication that the
request was made under coercion or duress.

3.  The applicant’s voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, for the good of the service to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.

4.  Considering all the facts of the case, the type of discharge directed
and the reasons for separation were appropriate.

5.  In order to justify correction of a military record the applicant must
show 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.

6.  In view of the foregoing, there is no basis for granting the
applicant's request.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 August 1972; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
14 August 1975.  However, the applicant did not 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

____dja _  ___jlp___  ____le___  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.




                                  _________Jennifer L. Prater_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040000342                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20041214                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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