RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          28 April 2005
      DOCKET NUMBER:  AR20040004505


      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             |
|     |Ms. Rosa M. Chandler              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Mr. Peter B. Fisher               |     |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 (UD) be upgraded
to an honorable discharge.

2.  The applicant states that his record contains no errors, but he
believes his UD should be upgraded because everyone deserves a second
chance.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice, which
occurred on 3 April 1974.  The application submitted in this case is dated
14 July 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.  On 10 October 1972, the applicant enlisted in the Regular Army for a
period of 3 years, training in military occupational specialty (MOS) 71B
(Clerk) and the Unit of Choice Enlistment Option, 101st Airborne Division,
Fort Campbell, Kentucky.
He was assigned to Fort Leonard Wood, Missouri for completion of basic
training and advanced individual training.

4.  On 1 May 1973, nonjudicial punishment (NJP) under the provisions of
Article 15, Uniform Code of Military Justice (UCMJ), was imposed against
him for being AWOL from 2-30 April 1973.  His punishment included reduction
from pay grade E-3 to pay grade E-2 (suspended for 30 days), a forfeiture
of $170.00 pay per month for 2 months, with the second month suspended for
30 days, and 30 days of extra duty and restriction.

5.  On 21 June 1973, the applicant completed the training requirements; he
was awarded MOS 71B and assigned to Fort Campbell with duties in his MOS.

6.  On 25 June 1973, NJP under the provisions of Article 15, UCMJ, was
imposed against him for being AWOL from 25 June to 23 July 1973.  His
punishment included reduction from pay grade E-3 to pay grade E-2
(suspended for 90 days), and to serve 30 days in the Correctional Custody
Facility (15 days suspended for 90 days).

7.  The applicant left his unit in an AWOL status on 3 December 1973 to
19 February 1974 until he was apprehended by the AWOL Apprehension Team in
Memphis, Tennessee and returned to military control at the Personnel
Control Facility, Fort Campbell.

8.  The applicant's record does not contain all of the facts and
circumstances surrounding the discharge process.  However, his record does
contain a properly constituted DD Form 214 that was prepared at the time of
his separation and authenticated by the applicant.  The DD Form 214 shows
that, on 3 April 1974, he was separated for the good of the service, under
the provisions of chapter 10, Army Regulation 635-200, in pay grade E1 with
a UD.  He had completed 1 year, 1 month and 14 days of active military
service and he had 133 days of lost time, due to being AWOL and in military
confinement.

9.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking
a discharge upgrade.  On 17 November 1999, the ADRB notified the applicant
that his application was not filed within that board's 15-year statute of
limitations and would not be considered.

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.
At the time of the applicant's separation, a UD was appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The available records show the applicant was discharged under the
provisions of chapter 10, Army Regulation 635-200.  Although the facts and
circumstances surrounding the discharge process are missing, he would have
been charged with the commission of an offense(s) punishable under the UCMJ
with a punitive discharge.  He would have consulted with defense counsel
and signed a statement indicating that he had been informed he could
receive a UD and the ramifications of receiving such a discharge.  He would
have voluntarily requested discharge to avoid trial by court-martial.  In
doing so, he would have admitted guilt to the stipulated offense(s) under
the UCMJ.  The Board presumes administrative regularity and the applicant
has provided no information that would indicate the contrary.
2.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 3 April 1974; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
2 April 1977.  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

__ji____  __reb___  __pbf___  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 Infante
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040004505                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050428                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |19740403                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 10                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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