RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          12 August 2004
      DOCKET NUMBER:  AR2004100743


      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. Ann M. Campbell               |     |Chairperson          |
|     |Mr. James E. Anderholm            |     |Member               |
|     |Mr. John P. Infante               |     |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 that his undesirable discharge be changed to a
medical discharge.

2.  The applicant states that he had a mental illness and has always had a
mental illness.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 14 November 1975.  The application submitted in this case is
dated 31 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 enlisted in Memphis, Tennessee, on 3 March 1975 for a period of 3
years, training as a radio teletypewriter operator and assignment to
Hawaii.  He was transferred to Fort Jackson, South Carolina, to undergo his
basic combat training (BCT).

4.  On 9 April 1975, nonjudicial punishment was imposed against him for
being absent without leave (AWOL) from 1 April to 8 April 1975.  His
punishment consisted of a forfeiture of pay, extra duty and restriction for
14 days.

5.  The applicant again went AWOL on 3 May 1975 and remained absent until
he was apprehended by civil authorities in Plainesville, Ohio, on 12 July
1975 and was returned to military control at Fort Knox, Kentucky.

6.  On 21 July 1975, he went AWOL and remained absent until he was returned
to military control at Fort Campbell, Kentucky, on 10 August 1975, where
charges were preferred against him for the AWOL offenses.


7.  On 18 August 1975, 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 family
problems, that he could not adjust to military customs and that he had no
desire to perform any more military duties under any circumstances.

8.  The appropriate authority (a major general) approved his request on
8 September 1975 and directed that he be furnished an Undesirable Discharge
Certificate.

9.  Accordingly, he was discharged under other than honorable conditions on
14 November 1975, under the provisions of Army Regulation 635-200, chapter
10, in lieu of trial by court-martial.  He had served 5 months and 6 days
of total active service and had 99 days of lost time due to AWOL.  He was
still in a trainee status at the time of his discharge.

10.  He applied to the Army Discharge Review Board (ADRB) in January 1978
requesting that his discharge be upgraded to a more favorable discharge and
contended that he knew of persons who were in similar circumstances and had
gotten better discharges.  He also asserted that it was unfair that he be
penalized with such a discharge because it was hindering his ability to get
good jobs.  After reviewing all of the available evidence, the ADRB
determined that his discharge was both proper and equitable and voted
unanimously to deny his request on 4 December 1979.

11.  In May 1983, he again applied to the ADRB for an upgrade of his
discharge.  He contended at that time that there were those who fled to
Canada and did not serve, yet they received better treatment than he
received.  He also asserted that he had family problems at the time and was
not mentally or emotionally able to cope with the service.

12.  He was granted a personal appearance before the ADRB Traveling Panel
in Atlanta, Georgia, on 23 May 1983.  After reviewing the evidence of
record as well as the testimony provided by the applicant and his counsel,
the ADRB members again voted unanimously to deny his request on 7 June
1983.

13.  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.

14.  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 Army Discharge Review Board (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
Army Board for Correction of Military Records (ABCMR) should commence on
the date of final action by the ADRB.  In complying with this decision, the
ABCMR 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 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.  Additionally, the applicant has
failed to show through the evidence submitted or the evidence of record,
that he had a mental illness that prevented him from serving
satisfactorily.

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.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 7 June 1983; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 6 June 1986.  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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__amc___  __jea___  __jpi___  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.



                                  Ann M. Campbell
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100743                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040812                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1975/11/14                              |
|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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