RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           8 September 2005
      DOCKET NUMBER:  AR20050002296


      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. John Meixell                  |     |Chairperson          |
|     |Mr. William Powers                |     |Member               |
|     |Mr. Larry Olson                   |     |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
general.

2.  The applicant states he served his time in the Army and he believes he
should be granted a pardon for his mistakes that he made when he was
younger.  He also contends that enough time has lapsed to warrant a change
in his discharge.

3.  The applicant provides no evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 28 March 1974.  The application submitted in this case is dated
1 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.  The applicant was born on 25 May 1952 and inducted on 12 June 1972.  He
successfully completed basic combat training and advanced individual
training in military occupational specialty 52B (multipurpose power
generator operator/mechanic).

4.  The applicant went absent without leave (AWOL) on 16 July 1973 and
returned to military control on 14 August 1973.  He went AWOL again on
29 August 1973 and returned to military control on 1 February 1974.
Charges were preferred against the applicant for the AWOL periods.

5.  On 7 February 1974, 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.  He indicated in his
request that he understood that he could be discharged under other than
honorable conditions and furnished an Undesirable Discharge Certificate,
that he might be deprived of many or all Army benefits, that he might be
ineligible for many or all benefits administered by the Veterans
Administration and that he might be deprived of his rights and benefits as
a veteran under both Federal and State law.  He also acknowledged that he
might encounter substantial prejudice in civilian life because of an
undesirable discharge.  He elected to submit a statement in his own behalf.
 In summary, he stated that he went AWOL due to family problems and he
wanted out of the Army.  He stated that he never liked the Army, that he
had no intentions of trying to adapt to performing military duties again,
and that he would go AWOL in order to get out of the Army.  He also stated
that he would "take" any type of discharge the Army had to offer.

6.  On 26 February 1974, the separation authority approved the applicant’s
request for discharge and directed that he be furnished an undesirable
discharge.

7.  Accordingly, the applicant was discharged with an undesirable discharge
on 28 March 1974 under the provisions of Army Regulation 635-200, chapter
10, for the good of the service.  He had served 1 year, 2 months and 13
days of total active service with 214 days of lost time due to AWOL.

8.  On 7 August 1981, the Army Discharge Review Board (ADRB) denied the
applicant's request for an honorable discharge.

9.  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.  At the time, an undesirable
discharge was normally considered appropriate.

10.  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.

11.  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.  Age is not a sufficiently mitigating factor.  The applicant was 20
years old when he was inducted and he successfully completed basic combat
training and advanced individual training.  In addition, he was 21 years
old when he went AWOL the first time.

2.  Since the applicant had 214 days of lost time, his record of service
was not satisfactory.  Therefore, the applicant's record of service is
insufficiently meritorious to warrant a general discharge.

3.  The applicant’s administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 7 August 1981.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 6 August 1984.  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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

JM_____  WP_____  LO______  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 Meixell_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050002296                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050908                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19740328                                |
|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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