RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 October 2005
      DOCKET NUMBER:  AR20050004271


      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. Maria C. Sanchez              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Kenneth W. Lapin              |     |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 discharge be upgraded to honorable.

2.  The applicant states that he had excess leave because his mother was
ill and had family problems.  He continues that his commanding officer
placed him on leave until he was discharged.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation
from Active Duty) with an effective date of 10 July 1975; a one-page
letter, dated 12 April 2005; and one letter of support, dated 22 March
2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 10 July 1975, the date of his separation.  The application
submitted in this case is dated 3 March 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 enlisted in the Army on 30 December 1972 for a period of
three years.  After completion of basic and advanced individual training,
he was awarded military occupational specialty 76A10 (Supply Clerk).

4.  On 4 December 1974, nonjudicial punishment was imposed against the
applicant for being absent without leave (AWOL) from 26 November 1974
through 4 December 1974.  His punishment consisted of forfeiture of $95.00,
14 days of extra duty and reduction to the rank of Private First Class/pay
grade E-3 [reduction suspended for a period of 90 days].

5.  The applicant's service records contain seven DA Forms 4187 (Personnel
Action) which shows the applicant had three periods of AWOL.  The following
periods of AWOL are 13 January 1975 through 23 February 1975, 10 March 1975
through 12 March 1975, and 17 March 1975 through 6 May 1975.

6.  The applicant's service records contain a Defense Counsel Questionnaire
and Sworn Statement, dated 23 May 1975, which shows the applicant indicated
that he has three periods of AWOL.  This form also shows a statement
wherein the applicant indicated his reason for being AWOL was that his
mother was sick and he needed to be home to care for his mother and younger
siblings.

7.  A DD Form 458 (Charge Sheet), dated 27 May 1975, charged the applicant
with three periods of AWOL from 13 January 1975 through 23 February 1975,
10 March 1975 through 12 March 1975, and 17 March 1975 through 6 May 1975.

8.  The applicant's service records contain a form, dated 4 June 1975,
which shows the applicant consulted with legal counsel and was advised of
the basis for the contemplated trial by court-martial that provided for a
punitive discharge, the effects of a request for discharge for the good of
the service and of the rights available to him.  Subsequent to this
counseling, he voluntarily requested discharge under the provision of Army
Regulation 635-200, chapter 10, for the good of the service, in lieu of
trial by court-martial.  In his request for discharge, the applicant
indicated that he had not been coerced into requesting discharge and had
been advised of the implications that were attached to the request.  He
further acknowledged that he could be discharged under other than honorable
conditions and be furnished an Undesirable Discharge Certificate.  He also
stated that he understood that as a result of receiving such a discharge,
he may 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 6 June 1975, the applicant's commander recommended that the
applicant’s request for discharge be approved and that he be furnished an
Undesirable Discharge Certificate.

10.  On 13 June 1975, the major general in command of the 101st Airborne
Division (Air Assault) and Fort Campbell approved the applicant’s request
for discharge and directed that he be issued an Undesirable Discharge
Certificate and reduction to the lowest grade.

11.  The applicant's DD Form 214 shows that he was discharged on 10 July
1975, under the provisions of chapter 10 of Army Regulation 635-200, for
the good of the service, and issued an Undesirable Discharge Certificate.
He had served 2 year, 4 months and 12 days of net active service and 94
days of lost time due to AWOL.

12.  Records show the applicant applied to the Army Discharge Review Board
(ADRB) for upgrade of his discharge.  On 13 April 1981, the ADRB reviewed
and denied the applicant's request for upgrade.  The ADRB determined that
the applicant's discharge was proper and equitable and that the discharge
was properly characterized as under other than honorable conditions.

13.  The applicant submitted a letter of support, dated 22 March 2005, from
his employer, which stated that he is a good worker and always prompt.  The
letter continued that the applicant was hired as a part-time handyman to
help with general chores around their farm.

14.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel)
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.

15.  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.

16.  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.

17.  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 contends that his undesirable discharge should be
upgraded to honorable.

2.  The evidence of record confirms that the applicant was charged with an
offense that is punishable under the Uniform Code of Military Justice with
a punitive discharge.  After consulting with defense counsel, the applicant
voluntarily requested discharge from the Army in lieu of trial by court-
martial.

3.  Evidence shows the applicant’s administrative separation was
accomplished in compliance with applicable regulations and there is no
indication of procedural errors that would tend to jeopardize his rights.
The discharge proceedings were conducted in accordance with law and
regulations applicable at the time and the character of the discharge is
commensurate with the applicant's overall record of military service.

4.  After a review of the applicant’s record of service, 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.

5.  The period of service under consideration includes 94 days of AWOL and
separation with an Undesirable Discharge Certificate. Therefore, this
period of service is unsatisfactory and does not merit a general discharge.

6.  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.

7.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 13 April 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 12 April 1984.  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

_JNS__  __KWL___  __LDS___  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 N. Slone__
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050004271                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051018                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1975/07/10                              |
|DISCHARGE AUTHORITY     |AR 635-200, ch 10                       |
|DISCHARGE REASON        |For the good of the service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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