RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 July 2005
      DOCKET NUMBER:  AR20040008371


      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 had been discharged over 20
years ago and that he never went to trial.

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
4 June 1971.  The application submitted in this case is dated 24 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 6
January 1969 for a period of 2 years.  He successfully completed basic
combat and advanced individual training and was awarded the military
occupational specialty 12A10 (combat engineer).  The highest grade held by
the applicant was private1/pay grade E-1.

4.  The records show that the applicant did not have any foreign service.

5.  The records show that the applicant did not receive a military
decoration other than the National Defense Service Medal.

6.  The applicant's DA Form 20 (Enlisted Qualification Record) shows that
he was absent without leave (AWOL) during the period from 18 June 1969 to
1 February 1971.

7.  The circumstances and charges pertaining to the applicant's period of
AWOL were not available for the Board to review.
8.  The applicant's separation processing package was not available for the
Board's review.

9.  On 4 June 1971, 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 9 months and
15 days of active service and had 593 days of time lost.

10.  The applicant applied to the Army Discharge Review Board (ADRB) to
upgrade his discharge.  On 25 June 1976, 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.

11.  On 31 August 1977, the ADRB determined the applicant was properly
discharged and advised the applicant that his request for a change in type
and nature of his discharge under the "DOD Discharge Review Program
(Special)" was denied.

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.

15.  The Department of the Army Special Discharge Review Program (SDRP) was
based on a memorandum from Secretary of Defense Brown and is often referred
to as the “Carter Program.”  It mandated the upgrade of individual cases in
which the applicant met one of several specified criteria and when the
separation was not based on a specified compelling reason to the contrary.
The ADRB had no discretion in such cases other than to decide whether
recharacterization to fully honorable as opposed to a general discharge was
warranted in a particular case.  An individual who had received a punitive
discharge was not eligible for consideration under the SDRP.  Absentees who
returned to military control under the program were eligible for
consideration after they were processed for separation.  Eligibility for
the program was restricted to individuals discharged with either an
undesirable, discharge UOTHC or a general discharge between 9 August 1964
and 28 March 1973, inclusive.  Individuals could have their discharges
upgraded if they met any one of the following criteria: wounded in action;
received a military decoration other than a service medal; successfully
completed an assignment in Southeast Asia; completed alternate service;
received an honorable discharge from a previous tour of military service;
or completed alternate service or excused there from in accordance with
Presidential Proclamation 4313 of 16 September 1974.  Compelling reasons to
the contrary to deny discharge upgrade were desertion/AWOL in or from the
combat area; discharge based on a violent act of misconduct; discharge
based on cowardice or misbehavior before the enemy; or discharge based on
an act of misconduct that would be subject to criminal prosecution under
civil law.

DISCUSSION AND CONCLUSIONS:

1. The applicant contends, in effect, that his discharge under other than
honorable conditions should be upgraded to an honorable discharge because
it has been over 20 years since his discharge.

2.  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 undesirable discharge.

3.  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.

4.  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.

5.  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.

6.  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.

7.  The applicant was not wounded in combat in Vietnam, did not receive a
military decoration other than a service medal, did not successfully
complete a normal tour in Southeast Asia, nor did he receive an honorable
discharge from a prior period of service.  Therefore, the applicant did not
meet the criteria for an upgraded discharge under the Special Discharge
Review Board Program.

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

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

10.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 31 August 1977.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 30 August 1980.  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                 |AR20040008371                           |
|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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