RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        16 August 2005
      DOCKET NUMBER:  AR20040010183


      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. Melvin H. Myer                |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. James B. Gunlicks             |     |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 a general discharge.

2.  The applicant states, in effect, that his discharge was based on
isolated incidents pertaining to his family situation.

3.  The applicant provides:

      a.  a copy of his DD Form 214 (Report of Separation from Active Duty)
with an effective date of 20 November 1975;

      b.  a copy of his commander's sworn statement, made on 10 September
1976, wherein the commander states that in May 1975 the applicant "was
besieged with family difficulties and problems with civilian authorities
causing further lack of motivation."

      c.  copies of civilian medical treatment for diabetes between June
1998 and November 2002; and

      d.  copies of medical treatment for his eyes between March 2002 and
May 2004 from the Laser Eye Institute.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 20 November 1975, the date of his discharge.  The application
submitted in this case is dated 28 October 2004 and was received on 12
November 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 that he enlisted on 26 July 1974
for a period of 3 years.  He successfully completed basic combat and
advanced individual training and was awarded the military occupational
specialty 13B1P (field artillery crewman).
4.  The applicant accepted nonjudicial punishment (NJP) under Article 15,
Uniform Code of Military Justice (UCMJ), on 13 March 1975 and on 19 June
1975.  His offenses included being absent from appointed place of duty on
4 March 1975 and being absent without leave (AWOL) during the periods from
6 May 1975 to 21 May 1975 and from 28 May 1975 to 12 June 1975.

5.  The records show that the applicant was AWOL and dropped from the rolls

on 20 June 1975.  On 8 August 1975, he was apprehended by military
authorities.

6.  On 11 August 1975, the applicant was charged with being AWOL during the
period from 20 June 1975 to 8 August 1975 and referred for trial by special
court-martial.

7.  On 27 August 1975, the applicant signed his request for discharge for
the good of the service indicating that he was making the request of his
own free will and that he was afforded the opportunity to speak with
counsel prior to making this request.  In his request, the applicant
acknowledged that he may be discharged under other than honorable
conditions and furnished an Undesirable Discharge Certificate; that he
would be deprived of many or all Army benefits; that he may be ineligible
for many or all Veterans Administration benefits; and that he may expect to
encounter substantial prejudice in civilian life because of an undesirable
discharge.

8.  On 5 November 1975, the appropriate authority approved the applicant's
request for discharge for the good of the service and directed that the
applicant be furnished an Undesirable Discharge Certificate.

9.  On 20 November 1975, the applicant was discharged under the provisions
of Chapter 10 of Army Regulation 635-200, due to conduct triable by court
martial.
He had completed 1 year, 1 month and 5 days of active service.  He had 80
days time lost and 71 days excess leave.

10.  There is no indication that the applicant applied to the Army
Discharge Review Board (ADRB) for an upgrade of his discharge within the
ADRB's 15-year statue of limitations.

11.  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.  However, at the time of the applicant's separation the
regulation provided for the issuance of an undesirable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be
upgraded to a general discharge because his discharge was based on isolated
incidents pertaining to his family situation.

2.  Although, in his statement, the applicant's commander also mentioned
that the applicant was having family difficulties, there is no evidence or
mention of what the family difficulties were.

3.  The Board does not consider three periods of AWOL, the last of which
ending only when the applicant was apprehended, as isolated incidents.

4.  However, the applicant's discharge was not based on his periods of
AWOL, it was issued based on his request for discharge in lieu of court-
martial.

5.  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.

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

7.  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.

8.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.  The records contain no
indication of procedural or other errors that would tend to jeopardize his
rights.

9.  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.

10.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 November 1975, the date of his
discharge; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 19 November 1978.  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

___mhm            jbg                 jtm   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.




                                  __            Melvin H. Meyer  _____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |Ar20040010183                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050816                                |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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