RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        07 JULY 2005
      DOCKET NUMBER:  AR20040007692


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin Meyers                 |     |Chairperson          |
|     |Mr. Eric Andersen                 |     |Member               |
|     |Ms. Carol Kornhoff                |     |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 records be corrected by upgrading his
discharge to general under honorable conditions.

2.  The applicant states he was having marital problems that he needed to
resolve.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 11 November 1975.  The application submitted in this case is
dated 1 December 2003.

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 27 September 1974, for a
period of 4 years.

4.  On 21 March 1975, he was convicted by a summary court-martial of being
absent without leave (AWOL) from 28 October 1974 to 17 March 1975.  He was
sentenced to reduction to Private E-1, restriction, and a forfeiture of
pay.

5.  Documents in the applicant’s records show that on 23 October 1975, the
appropriate separation authority approved the applicant’s discharge request
under the provisions of Army Regulation 635-200, Chapter 10, for the good
of the service.

6.  There are no other facts and circumstances concerning the applicant’s
discharge proceeding in his available records.


7.  On 11 November 1975, the applicant was discharged under the provisions
of Army Regulation 635-200, Chapter 10, with an undesirable discharge,
characterized as under other than honorable conditions.  His DD Form 214
(Report of Separation from Active Duty) indicates he had 8 months and 28
days of active service, and 140 days of lost time.

8.  Army Regulation 635-200, then in effect, set forth the basic authority
for the separation of enlisted personnel.  Chapter 10 of that regulation
provided, in pertinent part, that a member who had committed an offense or
offenses for which the authorized punishment included a punitive discharge
could at any time after the charges had 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, the regulation
provided for the issuance of an under other than honorable conditions
characterization.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the
discharge proceedings were conducted in accordance with law and regulation
applicable at the time.

2.  There is no evidence in the available records nor did the applicant
provide documentation to substantiate his claim that he was having marital
problems which was the cause of his being AWOL.

3.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 11 November 1975; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
10 November 1978.  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

___MM__  ___EA    _  __CK___  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 Meyer_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040007692                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050707                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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