RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           2 August 2005
      DOCKET NUMBER:  AR20040010251



      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. Joseph Adriance               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |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, in effect, that his undesirable discharge (UD)
discharge be upgraded to a general, under honorable conditions discharge
(GD).

2.  The applicant states, in effect, that he was suffering from a mental
problem that was later diagnosed as acute schizophrenic and could not make
clear judgments.

3.  The applicant provides medical treatment documents from the North
Carolina Department of Mental Health and a copy of his separation document
(DD Form 214) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 13 June 1974.  The application submitted in this case is
dated
8 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 record shows he enlisted in the Regular Army and
entered active duty on 16 January 1973.  He successfully completed basic
training at
Fort Jackson, South Carolina and was assigned to Fort Bragg, North Carolina
to attend advanced individual training (AIT) in military occupational
specialty (MOS) 94B (Food Service Specialist).

4.  On 9 April 1973, while attending AIT, the applicant departed absent
without leave (AWOL) from his organization.  He remained away for 134 days
until returning to military control on 21 August 1973.
5.  On 11 September 1973, a special court-martial found the applicant
guilty of violating Article 86 of the Uniform Code of Military Justice
(UCMJ) by being AWOL from on or about 9 April through on or about 21 August
1973.  The resultant sentence included a reduction to private/E-1 (PV1), a
forfeiture of $100.00 per month for two months and confinement at hard
labor for two months.

6.  On 7 January 1974, the applicant departed AWOL from his unit at
Fort Leonard Wood, Missouri.  He remained away for 112 days until returning
to military control at Fort Bragg, North Carolina on 28 April 1974.

7.  On 6 May 1974, the applicant underwent a separation physical
examination at Fort Bragg.  The Report of Medical Examination (SF 88) on
file in the applicant’s Military Personnel Records Jacket (MPRJ) shows the
examining physician found the applicant was normal in all clinical
evaluation areas, to include psychiatric.  The applicant entered a
statement indicating he was in good health in Item 73 (Notes).  The
examining physician gave the applicant a Physical Profile of 111111 and a
Physical Category of A, indicating good health, and medially cleared the
applicant for retention/separation.  The available medical records contain
no indication that the applicant suffered from a physically disqualifying
medical (mental) condition during his separation processing.

8.  The applicant’s MPRJ does not include a separation packet containing
the specific facts and circumstances surrounding the applicant’s separation
processing.  The record does contain a properly constituted DD Form 214
that identifies the authority and reason for his separation.

9.  On 13 June 1974, the applicant was undesirably discharged after
completing 4 months and 29 days of creditable active duty service, and
accruing 363 days of time lost due to AWOL and confinement.  The DD Form
214 he was issued confirms he was separated under the provisions of chapter
10, Army Regulation 635-200, for the good of the service.  The separation
document further shows that during his active duty tenure, he earned the
National Defense Service Medal and Marksman Qualification Badge with Rifle
Bar.

10.  The applicant provides medical documents that indicate he was admitted
to a civilian hospital on 17 September 1975, subsequent to his discharge,
and was treated for an acute schizophrenic episode.

11.  There is no indication that the applicant requested an upgrade of his
discharge from the Army Discharge Review Board (ADRB) within its 15-year
statute of limitations.
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 UD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he suffered from a mental disorder that
impaired his ability to serve, and the supporting medical documents he
submitted were carefully considered.  However, the evidence of record
confirms he underwent a complete final physical examination during his
separation processing, which found him in good health, both physically and
mentally.  He was cleared for separation by competent medical authority,
and there is no indication he suffered from any disabling physical or
mental condition at the time of his discharge.

2.  The applicant’s record is void of the specific facts and circumstances
surrounding the applicant’s discharge processing; however, it does contain
a properly constituted DD Form 214 that identifies the reason and
characterization of the applicant’s discharge.  Therefore, Government
regularity in the discharge process is presumed.

3.  The applicant’s separation document confirms he was discharged under
the provisions of chapter 10, Army Regulation 635-200, for the good of the
service.  In connection with such a discharge, he was charged with the
commission of an offense punishable with a punitive discharge under the
UCMJ.  Procedurally, he was required to consult with defense counsel, and
to voluntarily request separation from the Army in lieu of trial by court-
martial.  In doing so, he would have admitted guilt to the stipulated
offense(s) under the UCMJ that authorized the imposition of a punitive
discharge.  In the absence of information to the contrary, it is concluded
that 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.

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 13 June 1974.  Therefore, the time for
him to file a request for correction of any error or injustice expired on
12 June 1977. 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
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___WDP    ___RLD _  __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.




            ____William D. Powers___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040010251                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/08/02                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1974/06/13                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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