RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        9 August 2005
      DOCKET NUMBER:  AR20040010492


      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:

|     |Ms. Barbara J. Ellis              |     |Chairperson          |
|     |Mr. Kenneth L. Wright             |     |Member               |
|     |Mr. Patrick H. McGann Jr.         |     |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 be upgraded to a
general discharge under honorable conditions.

2.  The applicant states, in effect, that his discharge is unjust due to a
false statement given by a recruiter during his enlistment and he was
promised that he would get surgery, which never happened.

3.  The applicant provides no additional supporting documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged (error or
injustice) which occurred on 3 October 1972.  The application submitted in
this case is dated
20 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.  On 19 March 1970, the applicant enlisted in the Regular Army for 2
years, at the time of his enlistment he was 23 years old.  The applicant
completed the required training and was awarded military occupational
specialty 11C10 (Infantryman Indirect Fire Crew Member).  On 18 August
1970, the applicant was reported for being absent without leave (AWOL).  He
was returned to military control on 28 August 1972.

4.  On 12  September 1972, court-martial charges were preferred against the
applicant for being AWOL from 18 August 1970 to 27 August 1972.

5.  On 13 September 1972, the applicant consulted with legal counsel and
was advised of the basis for the contemplated separation action, the
effects of an undesirable discharge 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 an undesirable
discharge.

6.  On 14 September 1972, the applicant was found physically fit for
retention.

7.  On 19 September 1972, the unit commander recommended disapproval of the
requested discharge and recommended a General Court-Martial because of the
seriousness of the offense.

8.  On 22 September 1972, the Intermediate commander recommended
disapproval of the requested discharge and recommended a Special Court-
Martial empowered to adjudge a Bad Conduct Discharge.

9.  On 28 September 1972, the separation authority approved the applicant’s
request for discharge and directed that he receive an Undesirable
Discharge Certificate.  On 3 October 1972, the applicant was discharged
accordingly.  The separation document (DD Form 214) he was issued confirms
he completed
6 months and 5 days of creditable active military service and accrued 579
days of time lost due to AWOL.

10.  On 21 January 1983, 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.

11.  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.

12.  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 his discharge is unjust because a
recruiter made a false statement to him and that he was also promised that
he would receive surgery, were carefully considered.  However, there is no
evidence nor has the applicant provided any evidence to support his
allegations.  Therefore, given the circumstances in this case, there is
insufficient evidence to support his request.

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 21 January 1983.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 20 January 1986.  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

__KLW__  __PHM__  __BJE___  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.




                                    ____Barbara J. Ellis_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010492                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050809                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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