RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         23 June 2005
      DOCKET NUMBER:  AR20040008504


      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:

|     |Mr. Robert L. Duecaster           |     |Chairperson          |
|     |Mr. Thomas A. Pagan               |     |Member               |
|     |Mr. Michael J. Flynn              |     |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, an upgrade of his undesirable
discharge (UD) to an honorable discharge (HD).

2.  The applicant provides no argument, or documentary evidence in support
of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 5 May 1975.  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 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 that he initially enlisted in the Regular
Army and entered active duty on 1 August 1972, he was trained in, awarded
and served in the military occupational specialty (MOS) 94B20 (Cook).

4.  On 10 June 1974, the applicant was honorably discharged for the purpose
of immediate reenlistment.  At the time he had completed 1 year, 10 months
and
10 days of active military service and he held the rank of private first
class (PFC), which is the highest rank he attained while serving on active
duty.

5.  On 11 June 1974, the applicant reenlisted for six years and began the
enlistment under review.  His record documents no acts of valor,
significant achievement or service warranting special recognition.  The
record does reveal a disciplinary history that includes his acceptance of
nonjudicial punishment (NJP) under the provisions of Article 15 of the
Uniform Code of Military Justice (UCMJ) on two separate occasions and a
summary court-martial (SCM) conviction.

6.  On 28 March 1973, the applicant accepted NJP for failing to go to his
appointed place of duty at the time prescribed.  His punishment for this
offense consisted of an oral reprimand.
7.  On 8 May 1974, the applicant accepted NJP for two specifications of
failing to go to his appointed place of duty at the time prescribed.  His
punishment for these offenses consisted of a forfeiture $75.00 per month
for one month, reduction to private/E-2 (suspended for 90 days) and 14 days
of restriction and extra duty.

8.  On 31 December 1974, 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 absent without
leave (AWOL) from on or about 17 July through on or about 13 December 1974;
and from on or about 14 through on or about 23 December 1974.

9.  On 26 December 1974, after consulting with legal counsel the applicant
requested discharge for the good of the service in lieu of trial by court-
martial under the provisions of chapter 10, Army Regulation 635-200.

10.  On 13 January 1975, the separation authority approved the applicant’s
request for discharge and directed that he receive an UD.

11.  On 16 January 1975, the applicant requested that his discharge request
be withdrawn.

12.  On 17 January 1975, the separation authority approved the applicant’s
request to withdraw his discharge request.

13.  On 29 January 1975, a SCM found the applicant guilty of two
specifications of violating Article 86 of the UCMJ by being AWOL from on or
about 17 July through to on or about 13 December 1974, and from on or about
14 to on or about 23 December 1974.  The resultant sentence included a
reduction in grade to PV1.

14.  A Charge Sheet (DD Form 458) was prepared preferring a court-marital
charge against the applicant of violating Article 86 of the UCMJ by being
AWOL from on or about 2 February through on or about 3 April 1975.
15.  On 8 April 1975, 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 UD , 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.

16.  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.

17.  On 24 April 1975, the separation authority approved the applicant’s
request for discharge and directed that he receive an UD discharge.  On 5
May 1975, the applicant was discharged accordingly.  The DD Form 214 he was
issued confirms he completed a total of 2 years 1 month and 2 days of
creditable active military service and that he had accrued 243 of lost time
due to confinement and AWOL.

18.  On 6 February 1980, the Army Discharge Review Board (ADRB), after
carefully evaluating the applicant’s case, concluded that his discharge was
proper and equitable, and it voted to deny his request for an upgrade of
his discharge.

19.  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 UD.

20.  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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant request for an upgrade of his UD was carefully
considered.  However, there is an insufficient evidentiary basis to support
granting the requested relief.

2.  The evidence of record confirms the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, 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 service.

3.  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.

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 6 February 1980.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 5 February 1983.  However, he 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 case.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RLD _  ___TAP _  ___MJF__  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.




                                  _____Robert L. Duecaster___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040008504                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-06-23                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1974/05/10                              |
|DISCHARGE AUTHORITY     |AR 635-200, Ch 10. . . . .              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0200.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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