RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 April 2005
      DOCKET NUMBER:  AR20040006476


      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. James E. Vick                 |     |Chairperson          |
|     |Ms. Ann M. Campbell               |     |Member               |
|     |Ms. Margaret V. Thompson          |     |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 discharge.

2.  The applicant states, in effect, that he was on authorized leave when
he was a witness to a killing.  He continues that he was later subpoenaed
as a witness.
He further states that he was not offered counseling for what he saw and
feels that someone should have helped him.

3.  The applicant states that he did not receive PFC (Private First Class)
pay which he made in basic training.  He further states that he does not
understand his DD Form 214 (Report of Separation from Active Duty) and that
he never signed the form.

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 18 September 1975.  The application submitted in this case is
dated 22 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 enlisted in the Regular Army on 13 February 1974 and
successfully completed basic training and advanced individual training
(AIT).  He was awarded military occupational specialty 76Y
(Unit/Organization Supply Specialist).  The highest rank he attained in the
Army was Private/E-2.

4.  On 8 February 1973, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for being absent
without leave (AWOL) for the period 16 September 1974 through 30 September
1974.

5.  A DD Form 458 (Charge Sheet), dated 5 February 1975, shows charges were
preferred against the applicant for being AWOL for the period 6 January
through 4 August 1975.

6.  The applicant's request for discharge for the good of the service is
not available.

7.  The applicant's service personnel records do not contain the facts and
circumstances surrounding his separation process.  However, his DD Form 214
shows that he was discharged on 18 September 1975 under the provisions of
chapter 10 of Army Regulation 635-200 (Personnel Separations).  Item 9c
(Separation Code) shows the entry "KFS."  Army Regulation 635-5-1
(Separation Program Designator (SPD) Codes) identifies separation code KFS
as "In Lieu of Trial by Court-Martial."  Item 9e (Character of Service)
shows the entry "Under Other Than Honorable Conditions."  Item 9f shows he
was issued an Undesirable Discharge Certificate.  Item 27 (Remarks) shows
the entry "28 days excess leave from 22 Aug 75 thru 18 Sep 75."  The
applicant completed 11 months and 23 days of creditable active service with
225 lost time due to AWOL.

8.  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.

9.  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.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence and the applicant has not provided evidence that
shows he sought assistance from his chain of command, chaplain, or
community support service for counseling or that his command was aware of
the incident that occurred while he was on leave.  Therefore, there is no
basis for this argument.


2.  Evidence of records shows that the applicant's highest grade he
received in the military was Private/E-2, that he was released on excess
leave 28 days prior to his separation date from the military which made him
unavailable to sign his DD Form 214.  Records further indicate that he
requested to be discharged in lieu of a court-martial, that the request was
approved and that he received an undesirable discharge certificate with a
characterization of service of under other than honorable conditions.

3.  In the absence of evidence to the contrary, it is presumed that the
applicant's separation was accomplished in compliance with applicable
regulations and without procedural errors that would jeopardize his rights.
 Therefore, it is concluded that the applicant’s discharge was proper and
equitable.

4.  The applicant's records show that he received one Article 15 and had
two instances of AWOL.  The applicant had completed only 11 months and 23
days of his 3-year enlistment with a total of 225 lost days due to AWOL.
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 a general discharge.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 18 September 1975; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 17 September 1978.  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

__ JEV __  __ AMC _  _ MVT __  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.




                                  ___ James E. Vick_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040006476                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |14 April 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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