RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 JULY 2005
      DOCKET NUMBER:  AR20040009044


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda Simmons                 |     |Chairperson          |
|     |Mr. Patrick McGann                |     |Member               |
|     |Mr. Leonard Hassell               |     |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 records be corrected by upgrading his
characterization of service.

2.  The applicant states that he was a very young man and was not given the
correct military occupational specialty (MOS).  He also states that during
his enlistment he lost his grandmother and his mother.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 14 March 1974.  The application submitted in this case is dated
18 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 enlisted in the Regular Army on 10 January 1973, for a
period of 4 years.  At the time of his enlistment he was 17 years of age
and enlisted with parental consent.  He enlisted for a dual enlistment
option, which assured him, provided he met the prescribed prerequisites,
that he would be assigned to his unit of choice (III Corps Artillery at
Fort Sill, Oklahoma) and receive a cash enlistment bonus.

4.  The applicant successfully completed basic combat training at Fort Ord,
California, and advanced individual training at Fort Sill, Oklahoma.  He
was awarded MOS 13A (Field Artillery) on 9 May 1973, with an effective date
of
18 May 1973.  He served his entire military service at Fort Sill, Oklahoma.


5.  On 30 April 1973, he accepted nonjudicial punishment (NJP) under the
provisions of Article 15, Uniform Code of Military Justice (UCMJ) for
sleeping on post.  His punishment was restriction, extra duty, and a
forfeiture of pay.

6.  On 31 August 1973, he accepted NJP under the provisions of Article 15,
UCMJ for being absent without leave (AWOL) from 17 July 1973 to 26 July
1973. His punishment was reduction (suspended) and a forfeiture of pay.

7.  On 27 September 1973, his commander preferred court-martial charges
against him for being AWOL from 18 September 1973 to 20 September 1973,
from 21 September 1973 to 24 September 1973, and for robbing another
Soldier by force of his money.

8.  Documents in the applicant’s records indicate he was AWOL beginning on
10 December 1973, and was dropped from the rolls of the Army on 14 December
1973.  There is no indication when he returned from the last period of
AWOL.

9.  The facts and circumstances surrounding the applicant’s discharge
proceedings are not in the available records, however, on 14 March 1974, he
was discharged under the provisions of AR 635-200, Chapter 10, with a
characterization of service of under other than honorable conditions.  His
DD Form 214 indicates he had 11 months and 12 days of creditable service
and
83 days of lost time.

10.  Army Regulation 635-200, then in effect, set forth the basic authority
for the separation of enlisted personnel.  Chapter 10 of that regulation
provided, in pertinent part, that a member who had committed an offense or
offenses for which the authorized punishment included a punitive discharge
could at any time after the charges had been preferred, submit a request
for discharge for the good of the service in lieu of trial by court-
martial.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the
discharge proceedings were conducted in accordance with law and regulation
applicable at the time.

2.  The applicant voluntarily requested separation under Army Regulation
  635-200, Chapter 10, for the good of the service, to avoid trial by court-
martial.  The character of the discharge is commensurate with his overall
record of military service.

3.  While the Board is empathetic, the applicant's personal situation at
the time of his enlistment and his contention that he was young are not
sufficiently mitigating to warrant an upgrade of his discharge

4.  There is no evidence in the applicant’s records nor did he provide
documentation to substantiate his claim that his MOS was incorrect.  The
applicant enlisted for assignment to the III Corps Artillery at Fort Sill,
Oklahoma which would tend to suggest that he wanted to pursue an artillery
MOS.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 March 1974; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
13 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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__LS  ___  ___PM __  __LH ___  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.




                                  _____ Linda Simmons_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040009044                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050726                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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