RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 December 2005
      DOCKET NUMBER:  AR20050005637


      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. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Richard Dunbar                |     |Chairperson          |
|     |Mr. James Gunlicks                |     |Member               |
|     |Mr. Scott Faught                  |     |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 a
general or honorable discharge.  He also requests that his narrative reason
be changed.

2.  The applicant states that he thought all of these types of discharges
were changed to general discharges and he would like his discharge changed.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 22 January 1973.  The application submitted in this case is
dated 13 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.  The applicant enlisted in the Regular Army on 23 September 1971 for a
period of three years.  He was assigned to Fort Dix, New Jersey for basic
combat training.

4.  On 6 October 1972, charges were preferred against the applicant for
being absent without leave (AWOL) from 11 March 1972 to 27 May 1972 and 28
May 1972 to 12 September 1972.

5.  On 1 December 1972, the applicant consulted with legal counsel and
voluntarily requested discharge for the good of the service under the
provisions of Army Regulation 635-200, chapter 10.  In doing so, he
admitted guilt to the offenses charged and acknowledged that he might
encounter substantial prejudice in civilian life and that he might be
ineligible for many or all Army benefits administered by the Veterans
Affairs (VA) if an undesirable discharge was issued.  The applicant did not
submit statements in his own behalf.

6.  On an unknown date, the separation authority approved the discharge
under the provisions of Army Regulation 635-200, chapter 10 with issuance
of an Undesirable Discharge Certificate.

7.  The applicant was discharged on 22 January 1973 under the provisions of
Army Regulation 635-200, chapter 10 for the good of the service with an
undesirable discharge.  He had completed 9 months and 29 days of active
military service with 185 days of lost time.  His DD Form 214 shows the
Separation Program Number (SPN) code of "246" (For the Good of the Service)
for the narrative reason.

8.  There is no evidence of record which shows the applicant applied to the
Army Discharge Review Board within its 15-year statute of limitations.

9.  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 undesirable discharge.

10.  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, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.

11.  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.

12.  On 16 September 1974, President Gerald Ford issued Presidential
Proclamation 4313.  This Proclamation provided an opportunity for deserters
to work their way back into American society.  Three categories of service
members were eligible beneficiaries of Proclamation 4313.  One group was
prior members of the Armed Forces who had been discharged with a punitive
or undesirable discharge for violation of Articles 85, 86, or 87
(desertion, AWOL, and missing movement, respectively) of the Uniform Code
of Military Justice.  This group could apply to a Presidential Clemency
Board which was made up of individuals appointed by the President (members
were civilians, retired military, and members of the Reserve Components)
who would establish a period of alternate service of not more than 24
months that the individuals would perform.  If they completed the alternate
service satisfactorily, they would be entitled to receive a Clemency
Discharge.  The Presidential Board was authorized to award a Clemency
Discharge without the performance of alternate service (excusal from
alternate service).  The Clemency Discharge did not affect the underlying
discharge and did not entitle the individual to any benefits administered
by the Department of Veterans Affairs.

13.  A Presidential Memorandum was issued by President Ford on 19 January
1977 (sometimes referred to as PP 4313 Extension).  This memorandum
mandated the issuance of a general discharge to individuals who had: (1)
applied for consideration under PP 4313; (2) been wounded in action or
decorated for valor; and (3) records free of any compelling reason to deny
relief.  This was a mandate to the ADRB from the President and was to be
applied by the ADRB without any applications from the affected individuals.
 Whether the individuals had performed alternate service was not an issue
to be considered.

14.  The Department of the Army Special Discharge Review Program (SDRP) was
based on a memorandum from Secretary of Defense Brown and is often referred
to as the "Carter Program."  It mandated the upgrade of individual cases in
which the applicant met one of several specified criteria and when the
separation was not based on a specified compelling reason to the contrary.
The ADRB had no discretion in such cases other than to decide whether
recharacterization to fully honorable as opposed to a general discharge was
warranted in a particular case.  An individual who had received a punitive
discharge was not eligible for consideration under the SDRP.  Absentees who
returned to military control under the program were eligible for
consideration after they were processed for separation.  Eligibility for
the program was restricted to individuals discharged between 9 August 1964
and 28 March 1973, inclusive, with an undesirable, under other than
honorable conditions, or a general discharge.  Individuals could have their
discharges upgraded if they met any of the following criteria: wounded in
action; received a military decoration other than a service medal;
successfully completed an assignment in Southeast Asia; completed alternate
service; received an honorable discharge from a previous tour of military
service; or completed alternate or excused there from in accordance with PP
4313 of 16 September 1974.  Compelling reasons to the contrary to deny
discharge upgrade were desertion/AWOL in or from the combat
area; discharge based on a violent act of misconduct; discharge based on
cowardice or misbehavior before the enemy; or discharge based on an act of
misconduct that would be subject to criminal prosecution under civil law.

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.  There is no indication that the
request was made under coercion or duress.

2.  The applicant's record of service shows he was charged for being AWOL
on two separate occasions for a total of 185 days.  His record of service
was not satisfactory and did not meet the standards of acceptable conduct
and performance of duty for Army personnel for an upgrade to a general or
honorable discharge.  His narrative reason for separation appears to be
correct.

3.  There is no evidence to show the applicant applied for clemency under
PP 4313 and there is no evidence to show he met the eligibility criteria
for an upgrade under the SDRP.

4.  The applicant has failed to show through the evidence submitted or the
evidence of record that the type of discharge and the narrative reason
issued to him was in error or unjust.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 January 1973; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 21 January 1976.  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

RD______  JG______  SF______  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.




                                  Richard Dunbar________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050005637                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051208                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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