RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           29 July 2004
      DOCKET NUMBER:  AR2004102796


      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. Michael J. Fowler             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Richard Dunbar                |     |Member               |
|     |Mr. Thomas O'Shaughnessy          |     |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 discharge be upgraded from under other
than honorable conditions to an honorable discharge.

2.  The applicant states that he had family problems that caused a hardship
on him.  The applicant further states that it is hard for him to get
employment.

3.  The applicant provides an DD Form 214 (Armed Forces of the United
States Report of Transfer or Discharge) with the effective date 1 November
1973; a Department of Defense (DOD), Discharge Review Project Office
(DRPO), Office of the Naval Judge Advocate General letter, dated 22 January
1997; and an undated letter from the applicant to the DOD, DRPO.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 1 November 1973.  The application submitted in this case is
dated 3 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 entered active duty on 7 September 1972 and successfully
completed basic training and advanced individual training.  He was awarded
the military occupational specialty 36K20 (Field Wireman) and continuously
served on active duty until being separated with a under other than
honorable conditions discharge on 1 November 1973.

4.  On 17 November 1972, nonjudicial punishment (NJP) was imposed against
the applicant for failure to be at his prescribed place of duty on 16
November 1972.  His punishment consisted of forfeiture of $50.00.

5.  On 10 May 1973, NJP was imposed against the applicant for being absent
without leave (AWOL) for the period 7 May 1973 through 9 May 1973.  His
punishment consisted of forfeiture of $50.00, restriction to the company
area for seven days, and extra duty for seven days.

6.  Evidence of record shows that the applicant was AWOL for the period
11 June 1973 through 12 June 1973.

7.  Evidence of record shows that the applicant was AWOL on 29 July 1973.

8.  On 7 August 1973, the applicant was AWOL from his place of duty and he
was dropped from the rolls on 5 September 1973.

9.  A Fort Hood Form 943 (AWOL Returnee Information Sheet), dated 9 October
1973, shows that the applicant went AWOL on 7 August 1973 and remained AWOL
until he surrendered to military authorities on 9 October 1973.  On
9 October 1973, the applicant was placed under the control of the United
States Army Personnel Control Facility at Fort Hood.

10.  On 9 October 1973, the applicant was charged for being AWOL for the
period 7 August 1973 until 9 October 1973.

11.  On 13 October 1973, the applicant consulted with counsel and requested
discharge for the good of the service in lieu of court-martial under the
provisions of chapter 10 of Army Regulation 635-200 (Personnel
Separations).

12.  The applicant signed his request for discharge which showed that he
was making the request under his own free will; that he was afforded the
opportunity to speak with counsel; that he was advised that he may be
furnished an Under Other Than Honorable Discharge Certificate; that he will
be deprived of many or all Army benefits; that he may be ineligible for
many or all Veterans Administration benefits; and that he may expect to
encounter substantial prejudice in civilian life because of an Under Other
Than Honorable Discharge.

13. On 26 October 1973, the applicant's request for discharge for the good
of the service was approved by the lieutenant general in command of
Headquarters III Corps and Fort Hood, Texas.

14.  On 1 November 1973, the applicant was discharged from active duty and
was issued an under other than honorable conditions discharge based on
chapter 10, Army Regulation 635-200.  He served 11 months, and 24 days of
active duty service and had accrued 63 days of lost time.

15.  On 18 April 1977, the Army Discharge Review Board (ADRB) considered
the applicant’s request to upgrade his discharge.  The ADRB unanimously
determined that the discharge was proper and equitable and that the
discharge was properly characterized as under conditions other than
honorable.

16.  The applicant provided in support of his application a one-page
letter, from the DOD, DRPO, Office of the Naval Judge Advocate General,
dated 22 January 1997, which essentially stated "pursuant to a class action
lawsuit and subsequent settlement agreement."  The letter further states
that discharge upgrades may be provided to veterans who received a less
than honorable discharge if they were discharged from the inactive reserve
after 17April 1971.

17.  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.

18.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

19.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a soldier whose military record is satisfactory
but not sufficiently
meritorious to warrant an honorable discharge.  A characterization of under
honorable conditions may be issued only when the reason for the soldier’s
separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he had family problems that caused a
hardship on him.  There is no evidence in the available records and the
applicant has not provided evidence which shows that he requested
assistance for family hardship through the chain of command.  Therefore,
there is no basis for this contention.

2.  The applicant contends that it is hard for him to get employment.
Records indicate that the applicant was AWOL on four different occasions
and based on these facts, his contention is not sufficiently mitigating to
warrant relief.  Further, the Board does not grant relief solely for the
purpose of gaining employment or enhancing employment opportunities.
3.  The applicant’s voluntary request for separation under the provisions
of chapter 10 of Army Regulation 635-200, for the good of the service to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.

4.  Lacking evidence to the contrary, it is concluded that all requirements
of law and regulation were met and that the rights of the applicant were
fully protected throughout the separation process.  Therefore, it is
concluded that the characterization of and reason for the applicant’s
discharge were both proper and equitable.  As a result, his discharge
accurately reflects his overall record of service.

5.  The applicant’s record of service included four AWOL's, two Article
15's, and 63 days of lost time due to AWOL.  Based on this record of
indiscipline, the applicant’s service clearly did not meet the standards of
acceptable conduct and performance of duty for Army personnel, which are
required for issuance of an Honorable Discharge Certificate.

6.  Based on the applicant’s multiple offenses his record of service did
not meet the regulatory standard of satisfactory service.  In the absence
of a record of satisfactory service, the applicant is not entitled to a
General Discharge Certificate.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 November 1973; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 31 October 1976.  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:

___js____  ___to ___  __rtd____  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.



            _____John Slone______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004102796                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/07/29                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000/discharge                      |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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