RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           13 July 2004
      DOCKET NUMBER:  AR2004100490


      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              |


|     |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, he is requesting his discharge be
upgraded in order to obtain medical benefits.  He claims that he recently
separation from his wife of 15 years and because the court ordered child
support payments deducted from his pay, he is finding it difficult to
maintain his medical coverage through his current employer.  He states the
discharge he received was a direct result of many difficult things that
were going on in his life at the time, which he now regrets.

3.  The applicant provides a self-authored statement and a Department of
Veterans Affairs (VA) Application for Health Benefits (VA Form 10-10EZ) in
support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 15 November 1974.  The application submitted in this case
is dated 9 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 initially enlisted in the Regular
Army and entered active duty on 18 September 1972.  He was trained in,
awarded, and served in  military occupational specialty (MOS) 94B (Food
Service Specialist) and the highest rank he attained while serving on
active duty was private first class (PFC).
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 conviction of communicating
a threat and breaking restriction by a summary court-martial on 19 April
1973; and his acceptance of nonjudicial punishment (NJP) under the
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on
the following two occasions for the offense indicated:  12 March 1973, for
disobeying a lawful order; and 6 March 1974, for having a concealed weapon
in his possession.

5.  On 22 October 1974, a Charge Sheet (DD Form 458) was prepared that
preferred a court-martial charge, containing four specifications, against
the applicant for violating Article 86 of the UCMJ by being absent without
leave (AWOL) during the following periods:  from on or about 5 through on
or about
8 April 1974; from on or about 9 through on or about 15 April 1974; from on
or about 17 April through on or about 11 July 1974; and from on or about 24
July through on or about 11 October 1974.

6.  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 acknowledged that he was
guilty of the charge against him or of a lesser included offense therein
contained which also authorized the imposition of a bad conduct or
dishonorable discharge.  He 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  31 October 1974, 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 15 November 1974, the applicant
was discharged accordingly.

9.  The DD Form 214 the applicant was issued on the date of his discharge,
15 November 1974, confirms that he completed a total of 1 year, 7 months,
and
23 days of creditable active military service and that he accrued 188 days
of time lost due to AWOL.
10.  There is no indication in the record that the applicant applied to the
Army Discharge Review Board for an upgrade to his discharge within its 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 contention that his discharge should be upgraded in
order for him to receive medical benefits from the VA was carefully
considered.  However, while his current medical condition is unfortunate,
it does not provide an evidentiary basis that supports an upgrade of his
discharge at this time.

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.  In
doing so, he admitted guilt to an offense under the UCMJ that authorized a
punitive discharge.  All requirements of law and regulation were met and
that the rights of the applicant were fully protected throughout the
separation process.  Further, the applicant’s discharge accurately reflects
his overall undistinguished record of service.

3.  The applicant is advised that administering VA medical benefits is not
within the purview of this Board.  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 should have discovered the alleged error or
injustice now under consideration on 15 November 1974.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on
14 November 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 RELIEF

________  ________  ________  GRANT FORMAL HEARING

__SAM___  ___S   _  __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                 |AR2004100490                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/07/13                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1974/11/15                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |In Lieu of Court-Martial                |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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