RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        4 August 2005
      DOCKET NUMBER:  AR20040009570


      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. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 he would like to have his
discharge upgraded to an honorable discharge.

2.  The applicant states, in effect, that he was young and was involved
with the wrong crowd which caused him to receive a dishonorable discharge.
He further states, that he was not part of the incident that caused his
discharge.  Since that time he has not been in trouble with the law and has
been an outstanding citizen.

3.  The applicant provides no additional information.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged (error or
injustice) which occurred on 26 March 1976.  The application submitted in
this case is dated
30 August 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 enlisted in the Regular Army on
4 June 1974.  He completed the required training and was awarded military
occupational specialty 43K10 (Canvas Repairman).

4.  On 20 March 1975, the applicant accepted nonjudicial punishment for
leaving his appointed place of duty without proper authority.  His
punishment included
7 days extra duty and a forfeiture of $25.00 pay (suspended for 60 days).

5.  On 20 October 1975, the applicant was reported for being absent without
leave (AWOL).  He was returned to military control on 20 January 1976.

6.  On 22 January 1976, court-martial charges were preferred against the
applicant for being AWOL from 20 October 1975 to 19 January 1976.

7.  On 2 February 1976, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation action, the effects of
an undesirable discharge UD and of the rights available to him.  The
applicant voluntarily requested discharge for the good of the service, in
lieu of trial by court-martial.  In his request for discharge, he
acknowledged that he was guilty of the charge against him or of a lesser
included offense therein contained which also authorizes the imposition of
a bad conduct or dishonorable discharge.  He further stated that under no
circumstances did he desire further rehabilitation, for he had no desire to
perform further military service.  He also stated his understanding 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.  He further indicated that he understood that he could encounter
substantial prejudice in civilian life by reason of a UD.  The applicant
also stated that he was having family problems and requested that he
receive a general discharge.

8.  On 5 February 1976, the company commander recommended approval of the
applicant’s request with a UD.  On 6 February 1976, the battalion commander
recommended approval of the applicant’s request with a UD.

9.  On 9 February 1976, the applicant was physically fit for retention.

10.  On 27 February 1976, the separation authority approved the applicant’s
request for discharge and directed that he receive an Undesirable Discharge
Certificate.  On 26 March 1976, the applicant was discharged accordingly.
The separation document (DD Form 214) he was issued confirms he completed
1 year, 6 months and 21 days of creditable active military service and
accrued
93 days of time lost due to AWOL.

11.  On 8 March 1984, the Army Discharge Review Board (ADRB) determined
that the applicant’s discharge was proper and equitable and it voted to
deny the applicant’s request for an upgrade of his discharge.

12.  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
Certificate.

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 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 ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the Board 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’s contentions that he was young, that he got involved
with the wrong crowd and his good post service conduct was carefully
considered and found to have insufficient merit in this case.  Therefore,
given the circumstances in this case and his overall undistinguished record
of service, there is insufficient evidence to support his request at this
time.

2.  The evidence of record confirms that 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 short and undistinguished
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 8 March 1984.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 7 March 1987.  However, he failed to
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

__JEA __  __RTD __  __LMD __  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                 |AR20040009570                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050804                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1976/0326                               |
|DISCHARGE AUTHORITY     |AR635-200,chp10 . . . . .               |
|DISCHARGE REASON        |In lieu of court-martial                |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.110.00 |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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