RECORD OF PROCEEDINGS


      IN THE CASE OF:



      BOARD DATE:        20 October 2005
      DOCKET NUMBER:  AR20040008503


      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. G. E. Vandenberg              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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 (UD) be upgraded.

2.  The applicant states that he served under his stepfather's name but
when he found out that his biological father was alive he went AWOL (absent
without leave) in an attempt to find him.  He indicates he was confused
following his return from being AWOL and, when offered a "chapter 13
discharge", accepted it believing it would be upgraded at some point in the
future.

3.  The applicant provides no supporting documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 12 November 1976, the date of his discharge.  The application
submitted in this case is dated 28 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 limitation 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 records show he entered active duty on 6 September
1974, completed training and was awarded the military occupational
specialty (MOS) 11B (Light Weapons Infantryman).  The applicant enlisted
and served his entire period of service under the name L____ A. G_____.

4.  The applicant received nonjudicial punishment (NJP) under the
provisions of Article 15, Uniform Code of Military Justice, as follows:

      a.  on 5 June 1975 for disobeying a lawful order from a
noncommissioned officer (NCO);

      b.  on 3 December 1975 for failure to go to his appointed place of
duty;

      c.  on 16 March 1976, for willful disobedience of an order from an
NCO and six separate charges of failure to go to his appointed place of
duty;

      d.  on 28 March 1975 for being AWOL 25 – 26 March 1976;

      e.  on 12 May 1976 for being AWOL 6 - 7 May 1976; and

      f.  on 20 May 1976 for three separate instances of failure to go to
his appointed place of duty.

5.  The applicant was also reported to have been AWOL from 10 March through
14 March 1976.  The record does not contain a record of disposition of this
period of AWOL.

6.  On 16 June 1976 a bar to reenlistment was imposed.

7.  The applicant went AWOL on 19 July 1976 and remained absent until he
was apprehended on 7 October 1976.  Court-martial charges were preferred
for this last period of AWOL.

8.  On 19 October 1976, after consulting with counsel and being advised of
his rights and options, the applicant submitted a formal request, under the
provisions of Army Regulation 635-200, chapter 10, for discharge for the
good of the service (in lieu of trial by court-martial for an offense
punishable by a bad conduct or dishonorable discharge).  He acknowledged
that, if the request was accepted, he could receive a discharge under other
than honorable conditions and be furnished an Undesirable Discharge
Certificate.  He acknowledged that such a discharge would deprive him of
many or all of his benefits as a veteran, and that he could expect to
experience substantial prejudice in civilian life if he received a UD.

9.  The applicant's unit commander recommended that the applicant's request
be accepted based on the pending AWOL charge and his history of misconduct.

10.  The separation authority approved the applicant's request for
discharge and directed that he be separated under the provisions of Army
Regulation 635-200, chapter 10, for the good of the service in lieu of
trial by court-martial, and that he be given an Undesirable Discharge
Certificate.

11.  The applicant was discharged, under Army Regulation 635-200, chapter
10, for the good of the service in lieu of trial by court-martial, on 12
November 1976.  He had 1 year, 11 months, and 12 days of creditable service
with 85 days of lost time.

12.  The applicant enlisted in the Regular Army, under the name L____ A.
S____ on 1 July 1977 and entered active duty on 13 July 1977.  He served on
active duty for 3 months and 26 days before being honorably discharged in
accordance with Army Regulation 635-200, paragraph 5-39 (as then in effect)
for marginal or non-productive performance under the Trainee Discharge
Program.

13.  At the time of the applicant's enlistment in 1977, he failed to
disclose his previous enlistment and UD.

14.  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.  A
discharge under other than honorable conditions is normally considered
appropriate.  However, at the time of the applicant's separation the
regulation provided for the issuance of an undesirable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The Army does not now, nor has it ever had, a policy to automatically
upgrade discharges.  When an applicant submits a request to change a
discharge, each case is decided on its own merits.  Change may be warranted
if the Board determines that the characterization of service or the reason
for discharge was in error and/or unjust.  There is no substantiating
evidence to show that he was told his discharge would be automatically
upgraded.

2.  The applicant's voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, for the good of the service, to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.  There is no indication that the
request was made under coercion or duress.

3.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

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 12 November 1976; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 11 November 1979.  However, the applicant’s subsequent
period of honorable active service tolls the statute of limitations by 3
months and 26 days; accordingly the time for the applicant to file a
request for correction expired on 8 March 1977.  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 RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JTM___  __JBG__  __JRM __  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.




            _       John T. Meixell_________
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040008503                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051020                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19761112                                |
|DISCHARGE AUTHORITY     |AR 635-200, CH 10. . . . .              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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