RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          8 November 2005
      DOCKET NUMBER:  AR20050002254


      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:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Ms. Diane J. Armstrong            |     |Member               |
|     |Ms. Delia R. Trimble              |     |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 general discharge be upgraded to
honorable and that the service dates on his report of separation (DD Form
214) be corrected to reflect the correct dates of his service.

2.  The applicant states that his discharge should be upgraded to honorable
and his DD Form 214 should be corrected to reflect the proper service
dates.  He continues by stating that he served from 1966 to 1968 and from
June 1969 to August 1971.

3.  The applicant provides documents obtained from his records from the
National Personnel Records Center (NPRC) in St. Louis, Missouri.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 18 August 1971.  The application submitted in this case is
dated 3 February 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.  He enlisted in Baltimore, Maryland, on 6 December 1966 for a period of
2 years.  He completed his basic combat training at Fort Jackson, South
Carolina, and his advanced individual training (AIT) at Fort Dix, New
Jersey.  Upon completion of his AIT he was transferred to Fort Riley,
Kansas, for duty as an infantry direct fire crewman.  He was transferred to
Germany with his unit on
9 May 1967 and remained there until 26 April 1968, when he was returned to
Fort Riley with his unit.

4.  He continued to serve until he was honorably released from active duty
in the pay grade of E-4 on 5 December 1968, due to the expiration of his
term of service (ETS).  He had served 2 years of total active service.

5.  On 12 June 1970, he again enlisted in Baltimore, Maryland, for a period
of 4 years and training as a heavy equipment repairman.  He completed his
training at Aberdeen Proving Ground, Maryland, and was transferred to Fort
Lewis, Washington on 4 November 1970.

6.  On 26 January 1971, nonjudicial punishment (NJP) was imposed against
him for failure to go to his place of duty.  His punishment consisted of a
forfeiture of pay.

7.  On 1 June 1971, he went absent without leave (AWOL) and remained absent
until he was returned to military control at Fort Meade, Maryland, on 2
July 1971, and charges were preferred against him for the AWOL offense.

8.  On 14 July 1971, after consulting with counsel, the applicant submitted
a request for discharge for the good of the service, in lieu of trial by
court-martial under the provisions of Army Regulation 635-200, chapter 10.
He elected not to submit a statement in his own behalf.

9.  On 15 July 1971, his defense counsel submitted a Disposition Form (DA
Form 2496) to the Commander, Personnel Control Facility, indicating that he
had advised the applicant of his rights, that the applicant was insistent
that he desired to be discharged and if he could not be discharged, he
intended to go AWOL again.  After being counseled on the rights and
benefits that he would lose with an undesirable discharge, the applicant
remained determined in his desire to be discharged.

10.  The appropriate authority approved the applicant’s request and
directed that he be furnished an Undesirable Discharge Certificate.
Accordingly, he was discharged under other than honorable conditions on 18
August 1971, under the provisions of Army Regulation 635-200, chapter 10,
in lieu of trial by court-martial.  He had served 1 year, 1 month, and 6
days of total active service and had 31 days of lost time due to AWOL.

11.  The applicant applied to the Army Discharge Review Board (ADRB) on
18 January 1973 for an upgrade of his discharge and the ADRB denied that
request.  However, he again applied for a upgrade and personal appearance
before the ADRB on 4 March 1980.  He contended that he was experiencing
marital problems at the time and that his wife was neglecting his son and
was pregnant by another man, so he went AWOL to resolve the issues.  The
ADRB voted unanimously to upgrade his discharge to a general discharge on
13 February 1981.

12.  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 indicate
that they are submitting the request of their own free will, without
coercion from anyone and that they have been briefed and understand the
consequences of such a request as well as the discharge they might receive.
 Although an honorable or general discharge may be issued, a discharge
under other than honorable conditions is normally considered appropriate.

13.  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.  Notwithstanding the actions by the ADRB to upgrade his discharge to a
general discharge, the applicant’s record of service does not rise to the
level of a fully honorable discharge for the period in question.

4.  The applicant’s contention that his service dates are incorrect and
that he served in 1969 has been noted.  However, the evidence of record
does not support his contention.  His records contain his original
enlistment contracts which are properly reflected on his DD Forms 214.
Accordingly, there appears to be no basis to change the dates as he
suggests.
5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 13 February 1981.
As a result, the time for the applicant to file a request for correction of
any error injustice to this Board expired on 12 February 1984.  The
applicant did not file within the ABCMR's 3-year statute of limitations and
has not provided 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

__sk____  __dja___  __drt___  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.

                                  Stanley Kelley
            ______________________
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050002254                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051108                                |
|TYPE OF DISCHARGE       |(GD)                                    |
|DATE OF DISCHARGE       |1971/08/18                              |
|DISCHARGE AUTHORITY     |AR635-200/ch10 . . . . .                |
|DISCHARGE REASON        |Gd of svc                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |689/a70.00                              |
|1.144.7000              |                                        |
|2.110.0000              |189/corr 214                            |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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