RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           17 February 2005
      DOCKET NUMBER:  AR20040001440


      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. Thomas D. Howard              |     |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, in effect, that his undesirable discharge (UD)
be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he went absent without leave
(AWOL) briefly to get a job to help support his pregnant sick wife.  He
states that he was found working at a job paying much more money than he
was making in the service and which allowed his wife to go out of State for
treatment.

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 16 October 1973.  The application submitted in this case
was received on 12 May 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.  The applicant’s record shows he enlisted in the Regular Army and
entered active duty on 23 June 1971.  He was trained in, awarded and served
in military occupational specialty (MOS) 91B (Medical Specialist).

4.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.  His record does
reveal a disciplinary history that includes his summary court-martial
conviction of violating Article 86 of the Uniform Code of Military Justice
(UCMJ) by being AWOL from 3 through
23 October 1972.
5.  On 26 September 1973, 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 AWOL from on or about 28 June through on or
about
21 September 1973.

6.  On 28 September 1973, 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 UD, 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.  In his request for discharge, the applicant indicated that he
understood 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 elected not to submit a statement in
his own behalf.

7.  On 10 October 1973, the separation authority approved the applicant’s
request for discharge and directed that he receive an UD and that he be
reduced to the lowest enlisted grade.  On 16 October 1973, the applicant
was discharged accordingly.

8.  The DD Form 214 issued to the applicant on the date of his discharge,
16 October 1973, confirms he completed a total of 1 year, 11 months and 7
days of creditable active military service and accrued 107 days of time
lost due to AWOL and confinement.

9.  On 12 November 1974, the Army Discharge Review Board (ADRB) considered
the applicant’s case and after carefully reviewing the facts and
circumstances, found the applicant’s discharge was proper and equitable and
denied his request for an upgrade of his discharge.

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. However, at the time of the applicant's separation the
regulation provided for the issuance of an 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 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 ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the Board 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 contention that he went AWOL briefly to provide for his
sick pregnant wife was carefully considered.  However, this factor is not
sufficiently mitigating to warrant an upgrade of his discharge at this late
date.

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, he voluntarily requested
discharge from the Army in lieu of trial by court-martial.  The record
shows all requirements of law and regulation were met, the rights of the
applicant were fully protected throughout the separation process and that
his discharge accurately reflects his overall record of undistinguished
service.

3.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 12 November 1974.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 11 November 1977.  However, 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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JI ___  ___TDH _  ___MBL _  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___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040001440                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/02/17                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1973/10/16                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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