RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          20 September 2005
      DOCKET NUMBER:  AR20050002229


      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             |
|     |Ms. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Hise                    |     |Chairperson          |
|     |Mr. Thomas O'Shaughnessy          |     |Member               |
|     |Mr. Patrick McGann                |     |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 upgraded to
honorable.

2.  The applicant states, in effect, he was injured in the service and he
wants his discharge upgraded so he can obtain Department of Veterans
Affairs (DVA) healthcare benefits.

3.  The applicant provides four character reference letters.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 27 May 1971.  The application submitted in this case is dated
28 January 2005.

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 enlisted on 15 March 1968 for a period of 3 years.  He
trained as a light weapons infantryman and was honorably discharged on 14
November 1968 for immediate reenlistment.  He reenlisted on 15 November
1968 for a period of 3 years.

4.  The applicant went absent without leave (AWOL) on 7 October 1970 and
was dropped from the roles as a deserter on 9 November 1970.  He was
apprehended by civil authorities and returned to military control on 29
December. 1970.

5.  The facts and circumstances surrounding the applicant’s discharge are
not contained in the available records.  However, the applicant's OSA Form
172A (Review of Discharge or Separation), dated 25 September 1973,
indicates that charges were preferred against the applicant for
communicating a threat to kill a sergeant major, being disrespectful toward
a captain (two specifications), and desertion (7 October 1970 to 29
December 1970).

6.  The applicant's DD Form 214 (Report of Transfer or Discharge) for the
period ending 27 May 1971 shows that he was discharged on 27 May 1971 with
an undesirable discharge under the provisions of Army Regulation 635-200,
chapter 10, for the good of the service.  He had served 2 years, 3 months
and 24 days of creditable active service with 81 days of lost time.

7.  The applicant provided a character reference letter from his brother.
He attests that the applicant is a good man and devoted father, and that
for his loyalty and service he should be given amnesty and benefits.

8.  The applicant provided a character reference letter from his pastor.
He attests that the applicant deserves a second chance.  He also states the
applicant feels he was falsely accused of the charges and did not receive
fair representation as a noncommissioned officer, that he was not guilty of
the charges against him, and that he was a victim of racial discrimination.

9.  The applicant provided a character reference letter from his son.  He
attests that his father's distinguishing feature is his character and that
he performs selfless acts.

10.  The applicant also provided a character reference letter from a
friend.  She attests that the applicant is a devoted and caring father, and
a fine, upstanding, conscientious individual.

11.  On 25 September 1973, the Army Discharge Review Board (ADRB) denied
the applicant's request for an honorable discharge.  On 16 May 1977, the
Special Discharge Review Board denied the applicant's request for an
honorable discharge.

12.  Army Regulation 635-200, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  Chapter 10 of that
regulation provided, in pertinent part, that a member who had committed an
offense or offenses for which the authorized punishment included a punitive
discharge might at any time after the charges had been preferred, submit a
request for discharge for the good of the service in lieu of trial by court-
martial.  At the time, an undesirable discharge was normally considered
appropriate.

13.  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.
14.  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.

15.  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 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.  A discharge is not upgraded for the purpose of obtaining DVA benefits.

2.  The pastor's contentions relate to evidentiary and procedural matters
that could have been addressed and conclusively adjudicated in a court-
martial appellate process.  However, the applicant voluntarily requested
discharge in lieu of trial by court-martial.

3.  The character reference letters submitted on behalf of the applicant
fail to show that his discharge was unjust and should be upgraded.

4.  In the absence of evidence to the contrary, it must be presumed that
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.  Without having the discharge packet to
consider, it is presumed his characterization of service was commensurate
with his overall record of service.  As a result, there is no basis for
granting the applicant's request.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 16 May 1977.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to this Board expired on 15 May 1980.  However, the
applicant has provided evidence to support his request for a grant of
clemency based on good post-service conduct.  In view of the submitted
evidence and since good post service conduct could only accrue subsequent
to discharge from the Army, it is in the interest of justice to waive
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

JH_____  TO______  PM_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.



            _____James Hise_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050002229                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050920                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19710527                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 10                   |
|DISCHARGE REASON        |For the good of the service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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