RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          17 February 2005
      DOCKET NUMBER:  AR20040000821


      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. Rosa M. Chandler              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Thomas D. Howard, Jr.         |     |Chairperson          |
|     |Mr. John Infante                  |     |Member               |
|     |Ms. Maribeth Love                 |     |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 that his undesirable discharge (UD) be upgraded
to a general discharge under honorable conditions.

2.  The applicant states that his discharge was justified at the time, but
adds that he was young and foolish.  He adds that he had personal problems
in the Army; his wife was unfaithful, his mother died of cancer, and his
father died of a brain tumor.  He states that some 30 years have passed and
he requires medical assistance.

3.  The applicant provides a:

      a.  DD Form 214 (Armed Forces of the United States Report of Transfer
or Discharge).

      b.  Statement from a minister, dated 6 January 2004, which indicates
the applicant is a good, decent man.

      c.  DA Form 20 (Enlisted Qualification Record).

      d.  Separation Processing Documents.

      e.  Medical documents, dated between November 1971 and August 1972,
show that on 24 November 1971, the applicant was admitted to Madigan
General Hospital, Tacoma, Washington complaining of increasing low back
pain that developed as a result of a fall 2 days earlier.  He was diagnosed
to have acute low back strain.  He remained on a regimen of physical
therapy, including cryotherapy and whirlpool, and his condition gradually
improved.  On 3 December 1971, he was returned to duty with a profile.  He
sporadically received pain medication for low back pain until he was
separated.

      f.  Report of Medical Examination, dated 31 August 1972, which shows
that the applicant received a separation physical examination and he was
determined to be qualified for separation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 26 September 1972.  The application submitted in this
case is dated 1 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 11 November 1971, at age 20, the applicant was inducted into the
Army of the United States with a moral waiver for "criminal trespass to a
vehicle (on 23 August 1967)."

4.  The applicant left his unit at Fort Ord, California in an absent
without leave (AWOL) status from 3 March to 24 April 1972 until he returned
to military control at Fort Leonard Wood, Missouri.  The punishment for
this offense is not a matter of record.

5.  The applicant left Fort Leonard Wood in an AWOL status from 30 May to
28 August 1972 until he returned to military authorities at the Personnel
Control Facility (PCF), Fort Riley, Kansas.

6.  On 12 September 1972, court-martial charges were preferred against the
applicant for the period of AWOL from 30 May to 28 August 1972.  On the
same date, he consulted with legal counsel and requested discharge for the
good of the service in lieu of trial by court-martial under the provisions
of chapter 10, Army Regulation (AR) 635-200.  He was advised that
separation under chapter 10 could lead to a UD.  He authenticated a
statement with his signature in which he acknowledged that he understood
the ramifications of receiving a UD.  He declined to submit a statement in
his own behalf.

7.  On 12 September 1972, both the applicant's commander and the PCF
commander recommended that his request for discharge be approved with a UD.
On 18 September 1972, the separation authority approved separation with a
UD.

8.  The applicant left his unit in an AWOL status on 22 September 1972.
His DD Form 214 shows that, on 26 September 1972, he was separated in
absentia under the provisions of chapter 10, AR 635-200 for the good of the
service with a UD.  He had completed 5 months and 17 days of active
military service and he had 149 days of recorded lost time.

9.  On 15 December 1982, the Army Discharge Review Board denied the
applicant’s request for an upgrade of his discharge.

10.  AR 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 a UD.

11.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the 3 year limit on filing to the
Army Board for Correction of Military Records (ABCMR) should commence on
the date of final action by the ADRB.  In complying with this decision, the
ABCMR has adopted the broader policy of calculating the 3-year time limit
from the date of exhaustion in any case where a lower level administrative
remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was
administratively correct and in conformance with applicable regulations.
The character of the discharge is commensurate with the applicant's overall
record of military service.

2.  The applicant met entrance qualification standards, to include age.
The Board found no evidence that he was any less mature than other soldiers
of the same age who successfully completed their military service
obligation.

3.  The applicant had many legitimate avenues through which to obtain
assistance with his personal problems without committing the misconduct
which led to the separation action under review.

4.  On 31 August 1972, the applicant received a separation physical
examination and he was determined, qualified for separation.  The applicant
has provided no evidence to the contrary.  Records show the applicant
exhausted his administrative remedies in this case when his case was last
reviewed by the ADRB on 15 December 1982.  As a result, the time for the
applicant to file a request for correction of any error or injustice to
this Board expired on 14 December 1985.  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

___TDH__  __JI____  __ML____  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.



                                  Thomas D. Howard, Jr.
            ______________________
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040000821                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050217                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |19720926                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 10                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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