RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           17 March 2005
      DOCKET NUMBER:  AR20040003268


      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 did his best in the Army.
However, after the death of his parents in an automobile accident, after
taking leave to attend the funeral, he was unable to return to the Army due
to the emotional trauma he suffered.  He states that he went absent without
leave (AWOL) and was returned to military control many times.  Finally, he
was separated with an UD at the age of 17.  He states that now, at the age
of 48, he is asking for an upgrade of his discharge.  He states that he
believes he should have received a hardship discharge, or at least a
general, under honorable conditions discharge (GD) given the circumstances.


3.  The applicant provides a self-authored statement in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 19 October 1973.  The application submitted in this case
was received on 28 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 1 November 1972, at the age of 17.  He successfully
completed basic combat training and advanced individual training at
Fort Leonard Wood, Missouri and was awarded military occupational specialty
(MOS) 13A (Field Artillery).
4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows, in
Item 33 (Appointments and Reductions), that he was advanced to private/E-2
(PV2) on
1 March 1973 and that this is the highest rank he attained while serving on
active duty.  It also shows that on 16 October 1973, he was reduced to
private/E-1 (PV1), for cause.

5.  Item 41 (Awards, Decorations and Campaigns) of the applicant’s DA Form
20 shows that during his active duty tenure, he earned the National Defense
Service Medal, Marksman Qualification Badge with Rifle Bar and Expert
Qualification Badge with Grenade Bar.  There are no individual awards
listed and the record documents no acts of valor, significant achievement
or service warranting special recognition.

6.  The applicant’s Military Personnel Record Jacket (MPRJ) contains no
documentary evidence showing that he ever requested a hardship discharge
and it is void of a separation packet containing the specific facts and
circumstances surrounding his separation processing.

7.  The record does include a separation document (DD Form 214) that shows
the applicant was separated with an UD on 19 October 1973, under the
provisions of chapter 10, Army Regulation 635-200, for the good of the
service, in lieu of trial by court-martial.  This document further shows
that at the time of his discharge, he had completed 7 months and 10 days of
creditable active military service and had accrued 120 days of time lost
due to AWOL.

8.  There is no indication that the applicant requested an upgrade of his
discharge from the Army Discharge Review Board within its 15-year statute
of limitations.

9.  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 the emotional trauma he suffered as a
result of the death of his parents impaired his ability to serve was
carefully considered.  However, while the circumstances were difficult,
this factor alone is not sufficiently mitigating to warrant the requested
relief.  Further, there is no evidence that he ever requested counseling
for his emotional problems or that he applied for or was denied a hardship
discharge.

2.  The applicant’s record is void of the specific facts and circumstances
surrounding the applicant’s discharge processing; however, it does contain
a properly constituted DD Form 214 that identifies the reason and
characterization of the applicant’s discharge.  The applicant authenticated
this document with his signature on the date of his separation.  Therefore,
Government regularity in the discharge process is presumed.

3.  The record also confirms that the applicant was discharged under the
provisions of chapter 10, Army Regulation 635-200, for the good of the
service, in lieu of court-martial.  In connection with such a discharge, he
was charged with the commission of an offense punishable with a punitive
discharge under the UCMJ.  Procedurally, he was required to consult with
defense counsel, and to voluntarily request separation from the Army in
lieu of trial by court-martial.  In doing so, he would have admitted guilt
to the stipulated offense(s) under the Uniform Code of Military Justice
(UCMJ) that authorized the imposition of a punitive discharge.

4.  In the absence of information to the contrary, it is concluded that all
requirements of law and regulation were met and the rights of the applicant

were fully protected throughout the separation process.  Further, the
applicant’s discharge accurately reflects his overall record of short and
undistinguished service.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 19 October 1973.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 18 October 1976.  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
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                 |AR20040003268                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/03/17                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1973/10/19                              |
|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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