RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           17 May 2005
      DOCKET NUMBER:  AR20040005937


      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 N. Slone                 |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Ms. Carmen Duncan                 |     |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 his discharge was
unjust because no one looked into the facts and circumstances of his case.
He claims he was given the choice of going to the stockade, or accepting
discharge.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 18 June 1974.  The application submitted in this case is
dated
6 August 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’s record shows that he enlisted in the Regular Army and
entered active duty on 24 August 1973.  He was trained in and awarded
military occupational specialty (MOS) 94B (Cook) and the highest rank he
attained while serving on active duty was private/E-2 (PV2).

4.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.  The record does
reveal a disciplinary history that includes his acceptance of nonjudicial
punishment under the provision of Article 15 of the Uniform Code of
Military Justice (UCMJ) on three separate occasions.
5.  On 15 October 1973, the applicant accepted NJP for making a false
official statement.  His punishment for this offense was 7 days of
restriction.

6.  On 28 March 1974, the applicant accepted NJP for three specifications
of failing to go to his appointed place of duty at the prescribed time.
His punishment for these offenses was a reduction to private/E-1 (PV1) and
a forfeiture of $71.00 (Suspended); and 15 days of extra duty.

7.  On 4 April 1974, the suspension of the reduction and forfeiture imposed
on the applicant by the 28 March 1974 NJP action were vacated.

8.  On 12 April 1974, the applicant accepted NJP for three specifications
of failing to go to his appointed place of duty at the prescribed times.
His punishment for these offenses was 14 days of restriction and extra
duty.

9.  On 8 May 1974, a Charge Sheet (DD Form 458) was prepared preferring
three court-martial charges, containing 16 specifications, against the
applicant for violating Article 86, Article 91 and Article 92 of the UCMJ.
Charge I was for seven specifications of violating Article 86 by failing to
go to his appointed place of duty at the prescribed time on seven separate
occasions.  Charge II was for six specifications of violating Article 91 by
disobeying lawful orders and being disrespectful to superior
noncommissioned officers (NCOs) on six separate occasions.  Charge III was
for three specifications of violating Article 92 by disobeying the lawful
orders of superior commissioned officers on three separate occasions.

10.  On 22 May 1974, a DD Form 458 was prepared preferring two additional
charges against the applicant for violating Article 86 and Article 128 of
the UCMJ. The first additional charge was for two specifications of
violating Article 86 by failing to go to his appointed place of duty at the
prescribed time on two separate occasions.  The second additional charge
was for two specifications of violating Article 128 by committing assault
on two separate occasions.

11.  On 29 May 1974, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, 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.
12.  In his request for discharge, the applicant acknowledged that he was
guilty of the charge(s) against or of a lesser included offense(s) therein
contained which also authorizes the imposition of a bad conduct or
dishonorable discharge.

13.  The applicant also acknowledged that 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 he could encounter substantial
prejudice in civilian life by reason of an UD.

14.  On 1 June 1974, the separation authority approved the applicant’s
request for discharge and directed that he receive an UD.  On 18 June 1974,
the applicant was discharged accordingly.

15.  The separation document (DD Form 214) the applicant was issued on the
date of his discharge confirms he completed a total of 9 months and 25 days
of active military service.  This document also shows that during his
active duty tenure, he earned the National Defense Service Medal.

16.  On 12 October 1982, the Army Discharge Review Board (ADRB) determined
that the applicant’s discharge was proper and equitable and it voted to
deny the applicant’s request for an upgrade of his discharge.

17.  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.

18.  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 Board 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’s contention that his discharge was unjust because no one
ever looked at all the facts and circumstances of his case was carefully
considered.  However, there is insufficient evidence to support this claim.


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.  All
requirements of law and regulation were met, the rights of the applicant
were fully protected throughout the separation process and his discharge
accurately reflects his overall record of short and undistinguished
service.

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 exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 12 October 1982.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 11 October 1985.  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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JNS__  ___CD__  ___RLD _  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 N. Slone_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040005937                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/05/17                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1974/06/18                              |
|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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