RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 June 2005
      DOCKET NUMBER:  AR20040008258


      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. Betty A. Snow                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 under other then honorable
conditions (UOTHC) discharge be upgraded to general, under honorable
conditions discharge (GD).

2.  The applicant states, in effect, that due to the poor health of his
mother, he elected to stay home with her during this time.  He claims that
he returned to Fort Bliss, Texas on his own and paid the penalty for being
absent without leave.  He also states that he was informed that because he
did not commit a crime, his discharge would be upgraded.

3.  The applicant provides a copy of his separation document (DD 214) in
support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 22 January 1976.  The application submitted in this case
is dated
27 September 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 he enlisted in the Regular Army and
entered active duty on 19 March 1973.  He trained in, awarded and served in
military occupational specialty of 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 four separate periods of AWOL,
one period of confinement and one conviction by a special court-martial
(SPCM).
5.  On 3 December 1973, while assigned to Fort Bliss, Texas, a SPCM
convicted the applicant on 2 specifications of violating Article 86 of the
Uniformed Code of Military Justice (UCMJ) by being AWOL on two separate
occasions: from on or about 3 October 1973 through on or about 12 October
1973; and from on or about 15 October through on or about 6 November 1973.
The resultant sentence included a forfeiture of $100.00 pay per month for
six months, restriction to the limits of his unit for two months, and a
reduction to private E-1 (PV1).

6.  On 2 January 1976, a Charge Sheet (DD Form 458) was prepared preferring
a court-martial charge against the applicant for two specifications of
violating
Article 86 of the UCMJ by being AWOL from on or about 31 October through on
or about 4 December 1974 and from on or about 14 January through on or
about 22 December 1975.

7.  On 2 January 1976, 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 UOTHC discharge, and of the procedures and rights that were
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.

8.  In his request for discharge, the applicant also indicated that he
understood that by requesting discharge, he was admitting guilt to the
charge against him, or of a lesser included offense, that also authorized
the imposition of a bad conduct or dishonorable discharge.  He further
acknowledged 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.

9.  On 12 January 1976, the separation authority approved the applicant’s
request for discharge and directed that he receive an UOTHC discharge.  On
22 January 1976, the applicant was discharged accordingly.  The DD Form 214
he was issued confirms he completed 1 year, 8 months and 19 days of
creditable active military service and that he had accrued 411 days of time
lost due to AWOL and confinement.

10.  There is no indication that the applicant applied to the Army
Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-
year statute of limitations.


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his mother’s health was the reason for
him being AWOL and that he was informed that his discharge would be
upgraded because he had not committed a crime were carefully considered.
However, these factors are not sufficiently mitigating to warrant an
upgrade of his discharge at this late date.

2.  The Army does not now, nor has it ever, had a policy to automatically
upgrade discharges.  Each case is decided on its own merits when an
application requesting a change in discharge is submitted.  Changes may be
warranted if the ADRB or this Board determines that the characterization of
service or the reason for discharge or both were improper or inequitable.

3.  In this case, 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 being advised of his rights and of the effects of
an UOTHC discharge, 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.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 January 1976.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on
21 January 1979.  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

___MKP_  ___PHM_  ___LMD_  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.




                                  _____Margaret K. Patterson__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040008258                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-06-21                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1976/01/22                              |
|DISCHARGE AUTHORITY     |AR 635-200, Ch 10. . . . .              |
|DISCHARGE REASON        |Ch10                                    |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0200.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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