RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            23 November 2005
      DOCKET NUMBER:    AR20050006029


      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. Antoinette Farley             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Mr. Larry J. Olson                |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 undesirable discharge be upgraded.

2.  The applicant states he made a few minor mistakes.  He further states
he is now homeless and needs medical care.

3.  The applicant submits a copy of his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge), dated 14 April 1972 in
support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 14 April 1972, the date of his discharge from active
duty.  The application submitted in this case is dated 9 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’s record shows he enlisted in the Regular Army on 27
February 1970 for a period of three years.  He was trained in, awarded, and
served in military occupational specialty (MOS) 94B20 (Cook). The highest
rank he attained while serving on active duty was private first class/pay
grade E-3.

4.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he
was AWOL during the periods 7 July 1970 through 21 July 1970; 29 December
1970 through 16 March 1971; and 15 November 1971 through 21 November 1971.


5.  The record reveals a disciplinary history which includes his acceptance
of nonjudicial punishment (NJP) under the provisions of Article 15 of the
Uniform Code of Military Justice (UCMJ) on 29 July 1970, for absenting
himself without authority from his unit on 22 July 1970.

6.  On 7 June 1971, a special court-martial convicted the applicant of
being absent without leave (AWOL) from 29 December 1970 through 16 March
1971.  The applicant's punishment consisted of forfeiture of $50.00 pay,
per month for three months.
7.  On 25 January 1972, the Commander of the U.S. Army Personnel Control
Facility at Fort Devens, Massachusetts, preferred charges against the
applicant for being absent without leave (AWOL) during the period 7
December 1971 through 21 January 1972.

8.  On 22 March 1972, the applicant was found medically qualified for
separation.

9.  On 27 March 1972, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
maximum permissible punishment authorized under the UCMJ, the possible
effects of an under other than honorable conditions discharge, and of the
procedures and rights that were 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.

10.  In his request for discharge, the applicant indicated that he
understood that by requesting discharge, he was admitting guilt to the
charge against him, or of a lesser included offense, that also authorized
the imposition of a bad conduct or dishonorable discharge.  He further
acknowledged 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.

11.  The applicant also provided a letter on 22 March 1972 outlining his
reason for requesting discharge from the good of service.  The applicant,
in effect states that he understands he will not be getting any benefits if
his discharge is approved.  He further states the reason he is requesting
this discharge is because he cannot adjust to military life, is having
personal family problems and his nerves are "shot."  He adds that his
family situation forced him to go AWOL six times in six months.  He states
his divorced parents and sister are all deaf.  His mother supports herself,
his stepfather who is a heavy drinker, and four kids with $115.00 from
welfare.  The applicant states he was needed at home for both financial and
emotional reasons and "I will be no real value to the Army."

12.  On 29 March 1972, the separation authority approved the applicant’s
request for discharge and directed that he receive an Undesirable
Discharge.  On 14 April 1972, the applicant was discharged accordingly.






13.  The applicant's DD Form 214 (Certificate of Release or Discharge from
Active Duty) shows that he was separated on 14 April 1972, under the
provisions of chapter 10 of Army Regulation 635-200 for the good of the
service in lieu of trial by court-martial and furnished an Undesirable
Discharge Certificate.
The applicant's DD Form 214 also shows he completed a total of 1 year,
8 months and 20 days of creditable active military service with 148 days of
lost time due to AWOL and confinement.

14.  There is no evidence the applicant applied to the Army Discharge
Review Board for upgrade of his discharge.

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separation) sets forth the basic authority for the separation of enlisted
personnel.  Chapter 10 of this regulation provides, in 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 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.

16.  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.

17.  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.

18.  The Manual for Courts-Martial, Table of Maximum Punishments, sets
forth the maximum punishments for offenses chargeable under the UCMJ.  A
punitive discharge is authorized for an AWOL in excess of 30 days.







DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be
upgraded so he may receive assistance from the Veteran Administration for
health benefits.

2.  The applicant's records show that charges were preferred against the
applicant for approximately 148 days of AWOL.  The applicant's records
further show that his 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.  Records show the applicant was properly and equitably discharged in
accordance with the regulations in effect at the time.  Lacking evidence to
the contrary, it is determined that all requirements of law and regulations
were met and the rights of the applicant were fully protected throughout
the separation process.  Further, the applicant’s discharge accurately
reflects his overall record of service.

4.  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.

5.  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 this requirement.

6.  The applicant's official military personnel file is the basis for
establishing the applicant's military status and eligibility for military
entitlements and benefits.  Individual agencies and organizations establish
their own rules for eligibility for entitlements and benefits.  The ABCMR
does not have jurisdiction over individual agencies and organization and
does not amend a DD Form 214 for the sole purpose of obtaining entitlements
and benefits.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on the date of his separation 14 April
1972; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 13 April 1975.  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

_JNS___  __PHM____  _LJO___  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                 |AR20050006029                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051123                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |. . . . .                               |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0200                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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