RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           1 September 2005
      DOCKET NUMBER:  AR20040011635


      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 A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Richard T. Dunbar             |     |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)
be upgraded to an honorable discharge, and/or that he receive a medical
discharge.

2.  The applicant states, in effect, he desires the upgrade of his UD in
order to receive medical treatment for the disabilities he incurred during
military service.  He claims to have been seriously injured during his
military service and that he continues to suffer from these disabilities.
He states he is in need of treatment and even though he made some mistakes,
he should not be punished or denied treatment for these disabilities
because of those mistakes.

3.  The applicant provides a self-authored statement in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 22 April 1975.  The application submitted in this case is
dated
16 December 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 27 April 1974.  He was trained in, awarded and
served in military occupational specialty (MOS) 76Y (Supply Specialist),
and the highest rank he attained while serving on active duty was private/E-
2 (PV2).

4.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.  It does reveal a
disciplinary history that includes his acceptance of nonjudicial punishment
(NJP) under the provisions of Article 15 of the Uniform Code of Military
Justice (UCMJ) on the following two separate occasions for the offenses
indicated:  7 November 1973, for failure to repair for guard mount; and 1
October 1974, for being absent without leave (AWOL) for 10 days.

5.  On 7 March 1975, a Charge Sheet (DD Form 458) was prepared preferring a
court-martial charge against the applicant for violating Article 86 of the
UCMJ by being AWOL from on or about 1 October 1974 through on or about 21
February 1975.

6.  On 13 March 1975, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
maximum permissible punishment authorized under the UCMJ, the possible
effects of an UD, and of the procedures and rights that were available to
him.  Subsequent to receiving this legal counsel, the applicant voluntarily
requested discharge for the good of the service, in lieu of trial by court-
martial.

7.   In his request for discharge, the applicant also indicated that he
understood that by requesting discharge, he would 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.

8.  On 17 March 1975, the applicant underwent a separation physical
examination.  The examining physician noted the applicant’s hand condition
and recommended further treatment for this condition by the Department of
Veterans Affairs (VA).  The examining physician finally issued the
applicant a 111111 Physical Profile and a Physical Category of A and found
the applicant medically qualified for separation.

9.  On 21 March 1975, the separation authority approved the applicant’s
request for discharge and directed that he receive an UD and that he be
reduced to the lowest enlisted grade.  On 22 April 1975, the applicant was
discharged accordingly.  The DD Form 214 he was issued confirms he
completed a total of
1 year, 6 months and 22 days of creditable active military service and that
he accrued 155 days of time lost due to AWOL.

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

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 UD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for an upgrade of his discharge to either an
honorable discharge or medical discharge was carefully considered.
However, there is an insufficient evidentiary basis to support granting the
requested relief.

2.  The evidence of record confirms 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.  The
record further confirms all requirements of law and regulation were met and
that the rights of the applicant were fully protected throughout the
separation process.  Finally, it is concluded that the applicant’s
discharge accurately reflects his overall record of undistinguished
service.

3.  The record further confirms the applicant underwent a final separation
physical examination and issued a 111111 Physical Profile and Physical
Category of A, which indicated he was in good physical condition.  Finally,
he was found medically qualified and cleared for separation by competent
medical authority.  As a result, there is insufficient evidence showing the
applicant suffered from a medical condition that warranted his processing
for separation through medical channels at the time.

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 22 April 1975, the date of his
separation from active duty.  Therefore, the time for his to file a request
for correction of any error or injustice expired on 21 April 1978.  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

___SK __  ___BJE__  ___RTD_  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.




            ____Stanley Kelley______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040011635                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/09/01                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1975/04/22                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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