RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 February 2005
      DOCKET NUMBER:  AR20040003180


      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. Michael J. Fowler             |     |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 that his undesirable discharge be upgraded to a
general under honorable conditions discharge.

2.  The applicant states, in effect, that his discharge was an inequitable
decision because he had mental problems.  He continues that under today's
standards he would have received a better form of discharge.

3.  The applicant further states that his enlistment in the service was
fraudulent because he was under age.  He concludes that his discharge is
unfair because he is barred from Department of Veterans Affairs (VA)
benefits.

4.  The applicant provides no documentation in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 21 March 1975.  The application submitted in this case is dated
9 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 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 was born on 26 March 1957.  His parents signed a consent
form for him to enlist in the U.S. Army at the age of 17 on 3 April 1974.
He enlisted in the Army on 23 April 1974 and successfully completed basic
training and advanced individual training.  He was awarded military
occupational specialty 16P (Chaparral Crewman).

4.  On 15 November 1974, the applicant accepted nonjudicial punishment
(NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for not
being at his appointed place of duty.

5.  A DD Form 458 (Charge Sheet), dated 21 January 1975, shows charges were
preferred against the applicant for being absent without leave (AWOL) for
the period 2 December 1974 through 6 January 1975.

6.  A Standard Form 88 (Report of Medical History), dated 23 January 1975,
shows that the applicant was qualified for separation and had no
disqualifying mental disease or condition.

7.  A Standard Form 89 (Report Of Medical Examination), dated 23 January
1975, shows that the applicant was being separated and that his present
health was "fair."

8.  On 23 January 1975, the applicant underwent a mental evaluation by a
medical physician that determined that he could distinguish right from
wrong and that he possessed sufficient mental capacity to understand and
participate in administrative or judicial proceedings.

9.  On 31 January 1975, after consulting with counsel, the applicant
submitted a request for discharge for the good of the service under the
provisions of chapter 10 of Army Regulation 635-200 (Personnel
Separations).  The applicant indicated in his request that he understood he
could be discharged under other than honorable conditions and furnished an
Under Other Than Honorable Conditions Discharge; that he may be deprived of
many or all Army benefits; that he may be ineligible for many or all
benefits administered by the VA; 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 Conditions
Discharge.

10.  The applicant submitted two separate statements on his own behalf that
stated, in effect, that he joined the Army to help support his family.  He
further stated that the military was not what his recruiter promised it
would be and that his permanent duty station cost of living was too
expensive for him to bring his family to live.  After his company commander
denied his request for separation he decided that the only way to get out
was to go AWOL and he would continue [to go AWOL] unless he was let go.

11.  The applicant's second statement states, in effect, that his father
was a disabled veteran and did not make enough income to support his
family.  He continued that he was sorry for going AWOL and wished to be
given a second chance to become a fine Soldier.






12.  On 17 March 1975, the appropriate authority approved the applicant's
request for discharge for the good of the service under the provisions of
chapter 10 of Army Regulation 635-200.  He directed that the applicant be
issued an undesirable discharge certificate.  On 21 March 1975, the
applicant was discharged with a characterization of service as under other
than honorable conditions.  The applicant had completed 8 months and 3 days
of creditable active service with a total of 86 lost days due to AWOL and
confinement.

13.  The applicant applied to the Army Discharge Review Board (ADRB) to
upgrade his discharge.  On 22 January 1982, the ADRB reviewed and denied
the applicant's request for upgrade.  The ADRB determined that the
applicant's discharge was proper and equitable and that the discharge was
properly characterized as under other than honorable conditions.

14.  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.
At the time, an undesirable discharge was normally considered appropriate.
The regulation currently states that a discharge under other than honorable
conditions is normally considered appropriate.

15.  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 (emphasis
added), 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.

16.  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.

17.  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 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 contends that his discharge was an inequitable decision
because he had mental problems.  However, the applicant was found mentally
and physically qualified for separation.  There is no evidence and the
applicant has not provided evidence that shows he had mental problems.
Therefore, there is no basis for this argument.

2.  The applicant contends that under today's standards he would have
received a better form of discharge.  Under today's standards the applicant
could receive the same characterization of service for the same offense.

3.  The applicant further contends that his enlistment in the service was
fraudulent because he was under age.  Records show that the applicant's
parents consented to him joining the Army at the age of 17.  Therefore,
there is no basis for this argument.  He concludes that his discharge is
unfair because he is barred from VA benefits.  The applicant requested
discharge under the provisions of chapter 10 of Army Regulation 635-200.
He acknowledged that he understood that he may be deprived of many or all
Army benefits and that he may be ineligible for many or all benefits
administered by the VA.

4.  The applicant's records show that he received one Article 15 and was
AWOL over 30 days. He had completed 8 months and 9 days of creditable
active service before his separation with a total of 86 lost days due to
confinement.  Based on these facts, the applicant’s service clearly did not
meet the standards of acceptable conduct and performance of duty for Army
personnel which are required for issuance of an honorable discharge or
general discharge.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 January 1982, the date of the ADRB
action; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 21 January 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.




                                  ___ Mr. Thomas D. Howard _
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040003180                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |17 February 2005                        |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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