RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           29 March 2005
      DOCKET NUMBER:  AR20040004040


      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. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Ms. Susan A. Powers               |     |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.

2.  The applicant states, in effect, that his discharge was too harsh given
his overall record of service.  He claims that he is being denied needed
Department of Veterans Affairs (VA) benefits based on the UD.

3.  The applicant provides a VA letter denying him benefits in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 1 May 1975.  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 was initially inducted into the
Army and entered active duty on 8 February 1972.  He was trained in,
awarded and served in military occupational specialty (MOS) 36K (Wireman).
He was promoted to specialist four (SP4) on 10 February 1974 and this is
the highest rank he attained and served in while on active duty.

4.  On 18 March 1974, the applicant was honorably discharged for the
purpose of immediate reenlistment.  The separation document (DD Form 214)
he was issued at this time shows he earned the National Defense Service
Medal, Armed Forces Expeditionary Medal-Korea and Sharpshooter
Qualification Badge with Rifle Bar.

5.  On 19 March 1974, the applicant reenlisted in the Regular Army and
began serving the enlistment under review.  His record documents no acts of
valor, significant achievement, or service warranting special recognition
during this enlistment.
6.  On 1 October 1974, the applicant departed absent without leave (AWOL)
from his unit at Fort Bragg, North Carolina.  He remained away for 162 days
until returning to military control on 12 March 1975.

7.  On 17 March 1975, a Charge Sheet (DD Form 458) was prepared that
preferred a court-martial charge against the applicant for violating
Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL
from on or about
1 October 1974 through on or about 12 March 1975.

8.  On 25 March 1975, 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.

9.  Subsequent to receiving 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, he acknowledged that he was guilty
of the charge against him or of a lesser included offense therein contained
which also authorized the imposition of a bad conduct or dishonorable
discharge.

10.  In his request for discharge, the applicant acknowledged that he
understood that by requesting discharge, he would be deprived of many or
all Army benefits, that he could be ineligible for many or all benefits
administered by the VA, and that he could be deprived of his rights and
benefits as a veteran under both Federal and State law.

11.  On 1 April 1975, 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 1 March 1975, the applicant was
discharged accordingly.

12.  The DD Form 214 the applicant was issued at the time of his final
discharge confirms he completed a total of 2 years, 9 months and 14 days of
creditable active military service and accrued 162 days of time lost due to
AWOL.

13.  There is no indication in the record that the applicant applied to the
Army Discharge Review Board for an upgrade to his discharge within its 15-
year statute of limitations.
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.  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 his discharge should be upgraded in
order for him to receive VA benefits was carefully considered.  However,
this factor alone is not sufficiently mitigating to warrant granting the
requested relief.

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.  In
doing so, he admitted guilt to an offense under the UCMJ that authorized a
punitive discharge.  All requirements of law and regulation were met and
that the rights of the applicant were fully protected throughout the
separation process.  Further, the applicant’s overall record of service is
not sufficiently meritorious to support an upgrade of his discharge at this
time.

3.  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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 May 1975.  Therefore, the time for
him to file a request for correction of any error or injustice expired on
30 April 1978.  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

___MM__  ___PM__  ____SP__  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.




            ____Melvin H. Meyer_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040004040                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/03/29                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1975/05/01                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|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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