RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           22 September 2005
      DOCKET NUMBER:  AR20050002992


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Bernard P. Ingold             |     |Member               |
|     |Mr. Michael J. Flynn              |     |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, in effect, that his undesirable discharge (UD)
be upgraded to a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, he was an alcoholic at the time of his
discharge and did not know it.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 11 August 1972.  The application submitted in this case is
dated
21 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’s record shows he enlisted in the Regular Army and
entered active duty on 1 December 1971.  He was trained in and awarded
military occupational specialty (MOS) 11B (Infantryman), and the highest
rank he attained while serving on active duty was private/E-2 (PV2).

4.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.  The record reveals
a disciplinary history that includes his conviction by a summary court-
martial (SCM) for two specifications of being absent without leave (AWOL).


5.  A Charge Sheet (DD Form 458) was prepared that preferred a court-
martial charge against him for violating Article 86 of the Uniform Code of
Military Justice (UCMJ) by being AWOL from on or about 1 June 1972 through
on or about
11 July 1972.

6.  The applicant’s Military Personnel Records Jacket (MPRJ) contains a
copy of a Report of Medical Examination (SF 88), dated 18 July 1972.  It
shows the applicant received normal findings in all clinical evaluations
completed and no physical or mental defects were noted by the examining
physician.  The applicant received a Physical Profile of 111111 and was
cleared for separation by competent medical authority.

7.  On 20 July 1972, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
maximum permissible punishment authorized under the UCMJ, the possible
effects of an UD, and of the procedures and rights that were available to
him.  Subsequent to receiving this legal counsel, the applicant voluntarily
requested discharge for the good of the service, in lieu of trial by court-
martial.

8.  In his request for discharge, the applicant also indicated that he
understood that by requesting discharge, he acknowledged he understood that
if his discharge request was approved, he could be deprived of many or all
Army benefits, that he could be ineligible for many or all benefits
administered by the Department of Veterans Affairs (VA), and that he could
be deprived of his rights and benefits as a veteran under both Federal and
State law.

9.  On 7 August 1972, the separation authority approved the applicant’s
request for discharge and directed that he receive an UD, and that he be
reduced to the lowest enlisted grade.  On 11 August 1972, the applicant was
discharged accordingly.  The DD Form 214 he was issued confirms he
completed a total of
6 months and 18 days of creditable active military service, and that he
accrued 53 days of time lost due to AWOL.

10.  On 1 March 1979, the Army Discharge Review Board (ADRB), after
carefully reviewing the applicant’s case, concluded his discharge was
proper and equitable, and voter to deny his request for an upgrade of his
discharge.

11.  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.  However, at the time of the applicant's separation the
regulation provided for the issuance of an UD.

12.  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 Board 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 contention that he was an alcoholic at the time of his
discharge and did not know it, and this impaired his ability to serve was
carefully considered.  However, the record includes a separation medical
examination that confirms the applicant suffered from no physical or mental
impairments at the time of his discharge.  Further, even if the applicant’s
claim is true, this factor alone is not sufficiently mitigating to warrant
an upgrade of his discharge at this late date.

2.  The evidence of record confirms the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, he voluntarily requested
discharge in lieu of trial by court-martial.  The record further confirms
all requirements of law and regulation were met and that the rights of the
applicant were fully protected throughout the separation process.  Further,
the applicant’s discharge accurately reflects his short and undistinguished
record of service.

3.  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.

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 1 March 1979.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 28 February 1982.  He failed to 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

___JEA _  ___BPI __  __MJF __  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.




            ____James E. Anderholm___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050002992                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/09/22                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1972/08/11                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]