RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 August 2005
      DOCKET NUMBER:  AR20050003879


      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             |
|     |Mrs. Victoria A. Donaldson        |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Ms. Linda M. Barker               |     |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 his discharge be upgraded.

2.  The applicant states a doctor told him that, since he served over six
months, he would have to be medically discharged.

3.  The applicant did not provide documentary evidence in support of this
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 25 April 1973, the date of his discharge from active
duty.  The application submitted in this case is dated 30 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.  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 (AR 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.

3.  The applicant’s record shows he enlisted in the Regular Army on 8 July
1971. The applicant completed basic and advanced individual training.  He
was trained in, awarded, and served in military occupational specialty
(MOS) 11H10 (Infantry Direct Fire Crewman) and the highest rank he attained
while serving on active duty was private first class/pay grade E-3.

4.  On 4 November 1971, the applicant accepted nonjudicial punishment (NJP)
under the provisions of Article 15 of the Uniform Code of Military Justice
(UCMJ), for failure to go to his appointed place of duty.  His punishment
for this offense included forfeiture of $34.79 for 7 days, 8 days of
restriction, and 8 days extra duty.  The applicant did not appeal this
punishment.




5.  The applicant's records show he was absent without leave (AWOL) during
the period 18 July 1972 through 19 March 1973.  The applicant's records
further show his parents were notified, by letter dated 4 August 1972, that
he was AWOL and requested they impress upon him the necessity to return to
the nearest Army post without delay.

6.  On 20 March 1973, the applicant was apprehended by civilian authorities
and returned to military control.

7.  The applicant’s records do not include a separation packet containing
the specific facts and circumstances surrounding the applicant’s separation
processing.  However, the records contain a properly constituted DD Form
214 (Armed Forces of the United States Report of Transfer or Discharge)
that identifies the authority and reason for his separation.

8.  On 25 April 1973, the applicant was discharged after completing 1 year,
1 month, and 13 days of creditable active duty service, and accruing
245 days of time lost due to AWOL.  The DD Form 214 he was issued confirms
he was separated under the provisions of chapter 10, Army Regulation 635-
200 (Personnel Separations), for the good of the service.  The separation
document further shows during his active duty tenure, he earned the
National Defense Service Medal and Sharpshooter Qualification Badge with
Rifle Bar.

9.  On 20 June 1975, the Army Discharge Review Board (ADRB) denied the
applicant's request for upgrade of his under other than honorable
conditions discharge.  The ADRB unanimously determined the discharge was
proper.

10.  On 12 July 1979, the ADRB notified the applicant his second request
for upgrade of his discharge had been denied.

11.  On 26 July 1984, the ADRB notified the applicant his third request for
upgrade of his discharge had been received and no further action would be
taken since his case had previously been heard.

12.  The applicant provided a 7 December 2004 letter in which he stated he
has tried unsuccessfully to have his discharge upgraded to either a medical
or a general discharge.  The applicant stated he left his station to attend
to his mother who was stricken with cancer.

13.  The applicant contends "a captain" stated he would "cover" for him but
it was a lie and he was "picked up" by the police and returned to military
control.
14.  The applicant also contends he was "convinced" to accept an
undesirable discharge because he could get it upgraded later.

15.  The applicant argues the actions he took were unwarranted but may have
been caused by his fear of tuberculosis, his mother's illness, and his
diagnosis of bipolar.  The applicant concludes that due to his disability,
he lives at poverty level, has had two heart attacks, and still carries his
dog tags.

16.  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.
In this request, the applicant must acknowledge guilt to the offenses
charged.  A discharge under other than honorable conditions was normally
considered appropriate.

17.  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.

18.  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.  The applicant contends his discharge should be upgraded to a general
under honorable conditions discharge because he is ill and needs medical
benefits.

2.  Lacking evidence to the contrary, the applicant's request for
separation under provisions of chapter 10 of Army Regulation 635-200 for
the good of the service to avoid trial by court-martial was voluntary,
administratively correct, and in compliance with applicable regulations.

3.  There is no evidence which shows the applicant was not properly and
equitably discharged in accordance with the regulations in effect at the
time, that all requirements of law and regulations were not met, or the
rights of the applicant were not fully protected throughout the separation
process.  Absent such evidence, regularity must be presumed in this case.

4.  The applicant's record of service shows that he received one nonjudical
punishment for failure to go to his appointed place of duty and was AWOL
for 245 days.

5.  Based on this record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  This misconduct and lost time also renders his service
unsatisfactory. Therefore, he is not entitled to either a general discharge
or an honorable discharge.

6.  The ABCMR does not grant requests for upgrade of discharges solely for
the purpose of making the applicant eligible for Veterans or medical
benefits.

7.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 12 July 1979.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 11 July 1982.  However, 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

__MKP___  _REB___  _LMB___  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.




                                     _M. K. Patterson___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050003879                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050825                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |Y1973/04/25                             |
|DISCHARGE AUTHORITY     |AR 635-200 Cap 10. . . . .              |
|DISCHARGE REASON        |For the good of the service             |
|BOARD DECISION          |Deny                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0000.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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