RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           13 July 2004
      DOCKET NUMBER:  AR2004100437


      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. Samuel A. Crumpler            |     |Chairperson          |
|     |Mr. Stanley Kelley                |     |Member               |
|     |Mr. Mark D. Manning               |     |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, in effect, an upgrade of his undesirable
discharge (UD).

2.  The applicant states, in effect, that he had completed four years of
high school Reserve Officer Training Corps (ROTC) training and could not
cope with serving with inexperienced young men who had no military training
or experience.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 10 October 1969.  The application submitted in this case
is dated
21 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.  The applicant’s record shows that he was inducted into the Army and
entered active duty on 14 December 1967.  He was awarded and served in
military occupational specialty (MOS) 57A (Duty Soldier) and he never
advanced beyond the rank of private one (PV1) during his tenure on active
duty.

4.  The applicant’s record documents no acts of valor, significant
achievement or service warranting special recognition.  However, 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
offense(s) indicated:  11 January 1968, for being absent without leave
(AWOL) from 31 December 1967 through
10 January 1968; and 15 July 1968, for leaving his place of duty and for
being drunk and disorderly.
5.  The record further confirms the applicant was convicted by a special
court-martial (SPCM) on the following three separate dates of the
offense(s) indicated:  17 June 1968, AWOL from on or about 1 March through
on or about
9 May 1968; 29 September 1968, AWOL from on or about 21 July  through on or
about 24 August 1968; and 17 February 1969, AWOL from on or about
13 October 1968 through on or about 7 January 1969.

6.  The applicant’s record does not contain a copy a separation packet
containing the specific facts and circumstances surrounding the applicant’s
discharge processing.  However, there is a copy of an Army Discharge Review
Board (ADRB) Case Report & Directive (OSA Form 172) on file.  This document
outlines the discharge processing procedures pertaining to the applicant.
It indicates that a court-martial charge was preferred against the
applicant for the following three periods of AWOL:  21 through 24 March
1969; 8 through 9 April 1969; and 10 April through 16 July 1969.  It
further shows that after consulting with legal counsel, the applicant
voluntarily requested discharge for the good of the service, in lieu of
trial by court-martial; and that on 2 October 1969, the separation
authority approved his request for discharge.

7.  The record also contains a properly constituted separation document
(DD Form 214), which the applicant authenticated with his signature.  This
document confirms that the applicant was separated on 10 October 1969,
under the provisions of chapter 10, Army Regulation 635-200, for the good
of the service/in lieu of trial by court-martial, and that he received an
UD.  It further confirms that the time, he had completed 8 months and 28
days of creditable active military service and had accrued 393 days of time
lost due to AWOL and confinement.

8.  On 30 March 1982, the 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.

9.  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.

10.  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 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.  The applicant authenticated this document with
his signature on the date of his separation.  Therefore, the Board presumes
Government regularity in the discharge process.

2.  The evidence of record confirms that the applicant was discharged under
the provisions of chapter 10, Army Regulation 635-200, for the good of the
service, in lieu of court-martial.  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.

3.  In the absence of information to the contrary, it is concluded that all
requirements of law and regulation were met and the rights of the applicant

were fully protected throughout the separation process.  Further, the
applicant’s discharge accurately reflects his service during the enlistment
under review.

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 exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 30 March 1982.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 29 March 1985.  However, he 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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__SAM___  ___SK  _  __MDM__  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.




            _    Samuel A. Crumpler___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100437                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/07/13                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1969/10/10                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |In lieu of court-martial                |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  360  |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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