RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           6 December 2005
      DOCKET NUMBER:  AR20050005935


      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. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Donald W. Steenfott           |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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.

2.  The applicant states, in effect, he was drafted in 1969 or 1970 and he
would like to have his UD upgraded in order to clear his name with the
Army.

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 15 November 1971.  The application submitted in this case
is dated 28 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 that he was inducted into the Army and
entered active duty on 17 March 1970.  He was awarded and served in
military occupational specialty (MOS) 57A (Duty Soldier), 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.  It does reveal the
applicant was absent without leave (AWOL) from 3 October 1970 through 11
October 1971.

5.  On 15 October 1971, a Charge Sheet (DD Form 458) was prepared
preferring a court-martial charge against the applicant for violating
Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL
from on or about 3 October 1970 through on or about 11 October 1971.

6.  On 19 October 1971, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
effects of an UD and of the rights 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.

7.  In his request for discharge, the applicant acknowledged that 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.  He further indicated that he understood that he
could encounter substantial prejudice in civilian life by reason of an UD.
In a hand-written statement the applicant provided with the discharge
request, he also stated that if he were sent back to duty, he did not think
he would stay.

8.  On 10 November 1971, the separation authority approved the applicant’s
request for discharge, and directed the applicant be reduced to the lowest
enlisted grade and that he receive an UD.  On 15 November 1971, the
applicant was discharged accordingly.  The DD Form 214 he was issued, as
amended in a correction (DD Form 215) issued on 14 October 1982, shows he
completed a total of 7 months and 15 days of creditable active military
service and that he accrued 374 days of time lost due to AWOL.

9.  On 26 October 1982, the Army Discharge Review Board (ADRB), after
careful consideration of the applicant’s case, determined his discharge was
proper and equitable, and it voted to deny his request for an upgrade of
his discharge.

10.  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.

11.  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 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.  All requirements of law and
regulation were met and that the rights of the applicant were fully
protected throughout the separation process.  Further, his discharge
accurately reflects his short and undistinguished record of service.

2.  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.

3.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 26 October 1982.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 25 October 1985.  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

___BPI __  __DWS _  __EEM __  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.




            ____Bernard P. Ingold____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050005935                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/12/06                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1971/11/15                              |
|DISCHARGE AUTHORITY     |AR 635-200  C10                         |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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