RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 July 2005
      DOCKET NUMBER:  AR20040008298


      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. David S. Griffin              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Kenneth L. Wright             |     |Member               |
|     |Mr. Joe R. Schroeder              |     |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 discharge under other than
honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he was a good Soldier and that at
the time he was discharged he wanted to stay in the Army, but they wouldn't
let him because he had too many family problems. He further states that he
would still be in the Army if it was his say so.  However, they still
denied his request to stay in.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 27 June 1974, the date of his discharge.  The application
submitted in this case is dated 28 September 2004 and was received on 12
October 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 military records show he initially enlisted on 8 August
1972 for a period of 2 years.  He successfully completed basic combat and
advanced individual training and was awarded the military occupational
specialty 45A10 (armament maintenance apprentice).  The highest grade held
by the applicant was private/pay grade E-2.

4.  The applicant accepted nonjudicial punishment (NJP) under Article 15,
Uniform Code of Military Justice (UCMJ), on 23 January 1973 and on 2 April
1973.  His offenses included being absent without leave (AWOL) during the
periods from 14 January 1973 to 15 February 1973 and from 23 March 1973 to
26 March 1973.

5.  On 15 March 1968, the applicant was convicted by a summary court-
martial (SCM) for AWOL during the periods from 16 April 1973 to 7 June 1973
and from 12 June 1973 to 15 August 1973.

6.  The applicant accepted NJP under Article 15, UCMJ, on 14 December 1973
and on 22 February 1974.  His offenses included being AWOL during the
periods from 10 December 1973 to 12 December 1973 and from 12 February 1974
to
19 February 1974.

7.  The applicant's DA Form 20 (Enlisted Qualification Record) shows that
he was absent without leave (AWOL) during the period from 4 March 1974 to
16 May 1974.

8.  The circumstances and charges pertaining to the applicant's last period
of AWOL were not available for the Board to review.

9.  The applicant's separation processing package was not available for the
Board's review.

10.  On 27 June 1974, the applicant was discharged under the provisions of
Chapter 10 of Army Regulation 635-200, for the good of the service and was
issued an Undesirable Discharge Certificate.  He had completed 1 year,
2 months and 24 days of active service and had 240 days of time lost.

11.  The applicant applied to the Army Discharge Review Board (ADRB) to
upgrade his discharge.  On 12 March 1986, the ADRB reviewed and denied the
applicant's request for upgrade.  The ADRB determined that the applicant's
discharge was proper and equitable and that the discharge was properly
characterized as under other than honorable conditions.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records)
prescribes the policies and procedures for correction of military records
by the Secretary of the Army, acting through the ABCMR.  The regulation
provides that the ABCMR begins its consideration of each case with the
presumption of administrative regularity. The applicant has the burden of
proving an error or injustice by a preponderance of the evidence.

13.  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 Army Discharge Review Board (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
Army Board for Correction of Military Records (ABCMR) should commence on
the date of final action by the ADRB.  In complying with this decision, the
ABCMR 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.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations) sets forth the basic authority for the administrative
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.  At the time of the applicant's separation the regulation
provided for the issuance of an undesirable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his discharge under other than
honorable conditions should be upgraded to an honorable discharge.

2.  The applicant contends that he was a good Soldier and he had requested
to stay in the Army.

3.  Although the applicant's separation package was not available, in order
to be discharged under Chapter 10 of Army Regulation 635-200, the applicant
had to have voluntarily requested discharge, admitted his guilt, and
acknowledged that he could receive an under other than honorable conditions
discharge.

4.  The applicant had accepted punishment under Article 15, UCMJ on four
occasions and received one summary court-martial.  There is no evidence of
record that would indicate that the applicant was attempting to stay in the
Army.

5.  Therefore, there is no evidence to support the applicant's contentions.

6.  Rather than facing the consequences of a trial by court-martial the
applicant submitted a request for discharge for the good of the service, in
lieu of trial by court-martial.  Although he may now believe that he made
the wrong choice, he should not be allowed to change his mind at this late
date.

7.  Although the applicant's separation package was not available it is
presumed that the Army's administrative processing of the applicant for
discharge is correct. The applicant has the burden of proving an error or
injustice by a preponderance of the evidence.

8.  In order to justify correction of a military record the applicant must,
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.

9.  The ABCMR begins its consideration of each case with the presumption of
administrative regularity.  In the absence of evidence to the contrary, it
is determined that all requirements of law and regulations were met and the
rights of the applicant were fully protected throughout the separation
process.  Further, it is determined that the type of discharge and the
reason for separation were appropriate considering all the facts of the
case.

10.  The ABCMR does not upgrade discharges based solely on the passage of
time.

11.  Based on all of the foregoing, there is insufficient basis to upgrade
the applicant's discharge.

12.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 12 March 1986.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 11 March 1989.  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 file in this.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__KLW__  __JEA    _  __JRS __  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. Anderholm___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040008298                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050714                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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