RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           17 March 2005
      DOCKET NUMBER:  AR20040003159


      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. John E. Denning               |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 undesirable
discharge (UD).

2.  The applicant states, in effect, that he believes enough time has
passed and he has sufficiently paid for his mistake.

3.  The applicant provides a copy of his 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 8 May 1972.  The application submitted in this case is
dated 17 June 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 that he enlisted in the Regular Army and
entered active duty on 25 March 1971.  He successfully completed basic
combat training at Fort Jackson, South Carolina and was assigned to Fort
Gordon, Georgia to attend advanced individual training in military
occupational specialty (MOS) 35K (Avionics Mechanic).

4.  The applicant’s record shows he was advanced to private/E-2 (PV2) on
12 July 1971, and that this was the highest rank he attained while serving
on active duty.  His record documents no acts of valor, significant
achievement, or service warranting special recognition.

5.  The applicant’s disciplinary history includes his acceptance of
nonjudicial punishment (NJP) under the provisions of Article 15 of the
Uniform Code of Military Justice (UCMJ) on two separate occasions.  The
first on 2 July 1971,
for being drunk and disorderly on post; and the second on 3 August 1971,
for failing to go to his prescribed place of duty at the appointed time.

6.  On 23 March 1972, a Charge Sheet (DD Form 458) was prepared preferring
a court-martial charge against the applicant for three specifications of
violating Article 86 of the UCMJ.  The first specification was for being
AWOL from on or about 2 through on or about 9 September 1971.  The second
specification was for being AWOL from on or about 9 September through on or
about 7 October 1971, and the third specification was for being AWOL from
on or about
10 October 1971 through on or about 10 March 1972.

7.  On 24 March 1972, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial that could
lead to a bad conduct or dishonorable discharge, the effects of an UD and
of the rights 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.

8.  In his request for discharge, the applicant 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.  He further indicated that he understood that he could encounter
substantial prejudice in civilian life by reason of an UD.

9.  On 12 April 1972, the separation authority approved the applicant’s
request for discharge and directed that he receive an UD.  On 8 May 1972,
the applicant was discharged accordingly.  The DD Form 214 he was issued,
as amended, confirms he completed a total of 6 months and 17 days of
creditable active military service and that he accrued 207 days of time
lost due to AWOL.

10.  There is no indication the applicant applied to the Army Discharge
Review Board for an upgrade of his discharge 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 UD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that enough time has passed and he has paid
for his mistake was carefully considered.  However, the passage of time
alone does not support an upgrade of his discharge at this time.

2.  The evidence of record confirms that 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.

3.  The record further confirms that all requirements of law and regulation
were met and that the rights of the applicant were fully protected
throughout the separation process.  Finally, it is concluded that the
applicant’s discharge accurately reflects his overall record of short and
undistinguished service.

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 8 May 1972.  Therefore, the time for
him to file a request for correction of any error or injustice expired on 7
May 1975.  However, he 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

___JED_  ___JRS __  ___MJF _  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.




            ____John E. Denning_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040003159                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/03/17                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1972/05/08                              |
|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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