RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 November 2005
      DOCKET NUMBER:  AR20050002299


      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. Ronald DeNoia                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Thomas A. Pagan               |     |Chairperson          |
|     |Mr. Eric N. Anderson              |     |Member               |
|     |Mr. Joe R. Schroeder              |     |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, that he understood he would receive
papers to upgrade his discharge within 30 days of his separation.  He also
states that if his records were changed he could apply for VA benefits.

3.  The applicant provides an Undesirable Discharge Certificate; a DA Form
87 (Certificate of Training); US Army Correctional Training Facility, Fort
Riley, Kansas, Special Orders Number 237, dated 1 December 1970; and US
Army Artillery Center and Fort Sill, Oklahoma Court-Martial Convening Order
Number 214, dated 21 September 1970.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 30 October 1972, the date of his separation from active duty.
The application submitted in this case is dated 4 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 limitations 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 inducted into the Army on 18 July 1969.

4.  The applicant's records contain U.S. Army Field Artillery Center and
Fort Sill, Oklahoma Special Court-Martial Order Number 1373, dated 24
September 1970. This order shows that the applicant was charged with being
absent without leave (AWOL) for the period 9 December 1969 through 8
September 1970.  This order also shows the applicant pled guilty and was
found guilty of this charge.  He was sentenced to be confined at hard labor
for six months and to forfeit $65.00 per month for six months.  The
sentence was adjudged on 23 September 1970.

5.  On 24 September 1970 only the sentence that provided for confinement at
hard labor for four months and forfeiture of $65.00 per month for four
months was approved.
6.  The applicant was transferred to Fort Riley, Kansas to serve his
confinement and upon completion of his confinement at the Retraining
Brigade, he was transferred to Fort Hood, Texas.

7.  The applicant again went AWOL on 4 January 1971 and remained absent in
desertion status until he was returned to military control at Fort Sill on
29 September 1972, where charges were preferred against him for the AWOL
offense.

8.  The facts and circumstances surrounding his administrative discharge
are not present in the available records.  However, his records do contain
a duly constituted DD Form 214 signed by the applicant which shows that on
30 October 1972, he was discharged with a character of service of under
other than honorable conditions under the provisions of Army Regulation 635-
200, chapter 10, in lieu of trial by court-martial.  He had served 6 months
and 26 days of total active service and had 992 days of lost time due to
AWOL and confinement.

9.  There is no evidence in the available records to show that the
applicant applied to the Army Discharge Review Board for an upgrade of his
discharge within that board’s 15-year statute of limitation.

10.  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 was normally considered
appropriate.

11.  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.

12.  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.  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.

2.  Records show that the applicant was properly and equitably discharged
in accordance with the regulations in effect at the time.  Lacking evidence
to the contrary, it is determined that all requirements of law and
regulations were met and the rights of the applicant were fully protected
throughout the separation process.

3.  A review of the applicant’s record of service shows that he was AWOL
for 992 days and served only 206 days creditable active service.  Based on
the extensive nature of the applicant's absence it is evident that his
quality of service did not meet the standards of acceptable conduct and
performance of duty for Army personnel.  Therefore, he is not entitled to
an honorable discharge.

4.  Furthermore, his 992 days of lost time when compared to only 206 days
of good service renders his service unsatisfactory.  Therefore, he is not
entitled to a general (under honorable conditions) discharge.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 October 1972; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 29 October 1975.  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

__tap___  __ena___  __jrs___  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.



                                        Thomas A. Pagan
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002299                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051122                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19721030                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chap 10                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0133.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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