RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 JANUARY 2006
      DOCKET NUMBER:  AR20050005446


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda Simmons                 |     |Chairperson          |
|     |Mr. Rodney Barber                 |     |Member               |
|     |Ms. Rea Nuppenau                  |     |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 records be corrected by
upgrading his discharge.

2.  The applicant states that it has been thirty years since he was in the
service, that he made a mistake and has learned from it.  In 1976, he was
apprehended by the Federal Bureau of Investigation (FBI) and returned to
military control, however, he never received a Federal charge or appeared
in court.

3.  The applicant provides a copy of a denial letter concerning his request
for a gun permit, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 28 June 1976.  The application submitted in this case is dated
1 April 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.  Documents show the applicant initially enlisted and entered active duty
on
15 May 1972, for a period of 3 years, and reenlisted on 18 November 1974,
for a period of 5 years.

4.  On 25 June 1974, the applicant accepted nonjudicial punishment under
the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for
disobeying a lawful order from a superior commissioned officer.  His
punishment was restriction, extra duty, and reduction (suspended).

5.  On 22 July 1975, the applicant was punished under Article 15, UCMJ for
failure to go to his appointed place of duty, the Vanguard Leadership
Course on two occasions.  His punishment was extra duty and a forfeiture of
pay.



6.  On 14 January 1976, the applicant was punished under Article 15, UCMJ
for being absent without leave (AWOL) from 24 November 1975 to 8 December
1975.  His punishment was reduction, extra duty and a forfeiture of pay.

7.  On 8 April 1976, the applicant was punished under Article 15, UCMJ for
failure to go to his appointed place of duty.  His punishment was
restriction, and reduction to pay grade E-2.

8.  On 1 June 1976, a report from the FBI shows the applicant was
apprehended at the residence of his mother and returned to military
control.

9.  On 3 June 1976, the applicant’s commander preferred court-martial
charges against him for being AWOL from 24 November 1975 to 7 December
1975,
4 February 1976 to 5 February 1976, and from 5 April 1976 to 1 June 1976.

10.  On 4 June 1976, a Mental Status Evaluation and a medical examination
cleared the applicant for separation.

11.  On 8 June 1976, after consulting with legal counsel, the applicant
voluntarily submitted a request for discharge for the good of the service,
under Army Regulation 635-200, chapter 10, in lieu of trial by court-
martial.  He acknowledged that he was guilty of the charges against him,
and that he understood the effects of receiving an under other than
honorable conditions discharge.

12.  On 16 June 1976, the applicant’s unit commander recommended approval
of his request and the issuance of an undesirable discharge.

13.  On 21 June 1976, the appropriate separation authority approved his
request and directed his reduction to Private E-1, and the issuance of an
undesirable discharge.

14.  On 28 June 1976, the applicant was discharged under the provisions of
Army Regulation 635-200, Chapter 10, under other than honorable conditions.


15.  On 1 September 1988 the Army Discharge Review Board denied the
applicant's petition to upgrade his discharge.




16.  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's voluntary request for separation under the provisions
of Army Regulation 635-200, Chapter 10, for the good of the service, to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.

2.  The type of discharge directed and the reasons therefore were
appropriate considering the facts of the case.

3.  There is no evidence in the available records that show the applicant
was charged with a Federal offense.  On 1 June 1976 the applicant was in an
AWOL status, apprehended by the FBI, and returned to the Army.

4.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 1 September 1988.
As a result, the time for the applicant to file a request for correction or
any error or injustice to this Board expired on 31 August 1991.  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 timely file in this case.





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__LS____  __RB ___  __RN ___  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.




                                  _____Linda Simmons_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050005446                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060112                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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