Department of the Army
                  BOARD FOR CORRECTION OF MILITARY RECORDS
                      1901 SOUTH BELL STREET 2ND FLOOR
                          ARLINGTON, VA  22202-4508




                            RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:             JULY 1, 2004
      DOCKET NUMBER:     AR2004100433


      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. Jessie B. Strickland          |     |Analyst              |


  The following members, a quorum, were present:

|     |Ms. Lana McGlynn                  |     |Chairperson          |
|     |Ms. Linda Simmons                 |     |Member               |
|     |Mr. John Meixell                  |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 that his undesirable discharge be upgraded to a
general discharge.

2.  The applicant states that he was an above average military policeman
(MP) until he was assigned to White Sands Missile Range (WSMR), New Mexico,
and the executive officer (XO) continued to degrade him in front of
subordinates.  He goes on to state that his request for transfer was denied
and the pressure of the XO degrading him made him realize that he had only
two choices; hit the XO or leave.  He goes on to state that he left and
kept walking.  He continues by stating that he was promoted to the pay
grade of E-5 in 33 months, all of his evaluation reports were outstanding
and he received a letter of commendation for having the highest military
occupational specialty (MOS) test scores.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 5 February 1976.  The application submitted in this case is
dated 18 October 2003.

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 limitation 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.  He was born on 24 September 1954 and enlisted in Roswell, New Mexico,
on 24 February 1972, for a period of 3 years, training as an MP and
assignment to Fort Hood, Texas.

4.  He completed his basic combat training at Fort Polk, Louisiana, and his
advanced individual training (AIT) at Fort Gordon, Georgia.  Upon
completion of his AIT he was transferred to Fort Hood for duty as a MP.

5.  He was transferred to Korea on 16 January 1974 and on 25 September
1974, he reenlisted for a period of 3 years and assignment to WSMR.  He was
promoted to the pay grade of E-5 on 28 November 1974.

6.  He reported to WSMR on 18 February 1975 and on 2 August 1975, he went
absent without leave (AWOL).  He remained absent in a deserter status until
he was apprehended by military authorities in Aberdeen, South Dakota, on
19 December 1975.  He was returned to military control at Fort Carson,
Colorado, where charges were preferred against him for the AWOL offense.

7.  On 9 January 1976, after consulting with counsel, the applicant
submitted a request for discharge for the good of the service, under the
provisions of Army Regulation 635-200, chapter 10, in lieu of trial by
court-martial.  In his request he indicated that he was making the request
of his own free will, without coercion from anyone and that he was aware of
the implications attached to his request.  He also admitted that he was
guilty of the charges against him or of lesser included offenses which
authorized the imposition of a bad conduct or dishonorable discharge.  He
acknowledged that he understood that he could receive a discharge under
other than honorable conditions and that he might be deprived of all
benefits as a result of such a discharge.  He further elected to submit a
statement in his own behalf whereas he asserted that he had unjustly been
relieved of his duties as desk sergeant and that he had requested a
transfer to Fort Hood because he was having trouble with his parents and
his future wife. When things got so bad he left to take care of his family
problems and after resolving those issues he went to South Dakota to find a
job, where he was apprehended by the military police.  He went on to state
that while he was in confinement his wife was having blackout spells that
were because she had small children and was worrying about him.  He also
stated that he did not want to lose his family.

8.  The appropriate authority (a brigadier general) approved his request on
23 January 1976 and directed that he be discharged under other than
honorable conditions.

9.  Accordingly, he was discharged under other than honorable conditions
while on excess leave, on 5 February 1976, under the provisions of Army
Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had
served 8 months and 8 days of active service during his current enlistment
and had 125 days of lost time due to AWOL.  He had 3 years, 3 months and 9
days of total active service.

10.  There is no indication in the available records to show that he ever
applied to the Army Discharge review Board for an upgrade of his discharge
within that board’s 15-year statute of limitations.

11.  A review of the applicant's records shows that he received outstanding
evaluation reports and that he received a letter of commendation for making
the highest score on his MOS test.

12.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge
for the good of the service in lieu of trial by court-martial.  A condition
of submitting such a request is that the individual concerned must admit
guilt to the charges against them or of a lesser included offense which
authorizes the imposition of a bad conduct or dishonorable discharge and
they must indicate that they have been briefed and understand the
consequences of such a request as well as the discharge they might receive.
 A discharge under other than honorable conditions is normally considered
appropriate.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a
trial by court-martial, he voluntarily requested a discharge for the good
of the service in hopes of avoiding a punitive discharge and having a
felony conviction on his records.  In doing so he admitted guilt to the
charges against him.  While he may now believe that he made the wrong
choice, he should not be allowed to change his mind at this late date,
especially considering the length of his absence as well as his otherwise
undistinguished record of service during such a short period of time.

4.  The Board has noted the applicant’s contentions and finds that they are
not sufficiently mitigating to warrant relief under the circumstances.
While he may have been experiencing personal problems at the time, there is
no evidence to show that he made any attempt to seek assistance from his
chain of command to resolve his problems or at least offer an explanation
to explain his absence and misconduct.

5.  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.

6.  In view of the foregoing, there is no basis for granting the
applicant's request.


7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 5 February 1976; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 4 February 1979.  However, 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 RELIEF

________  ________  ________  GRANT FORMAL HEARING

lem_____  lds _____  jm______  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.




            ___Lana E. McGlynn____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100433                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040701                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1976/02/05                              |
|DISCHARGE AUTHORITY     |AR635-200/ch10 . . . . .                |
|DISCHARGE REASON        |Gd of svc                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |689/a70.00                              |
|1.144.7000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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