RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         10 January 2006
      DOCKET NUMBER:  AR20050007874


      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. Yvonne Foskey                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Kenneth L. Wright             |     |Chairperson          |
|     |Mr. Dale E. DeBruler              |     |Member               |
|     |Mr. Qawly A. Sabree               |     |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, that he and another Soldier were
discharged at the same time, and their discharges were mixed up based on an
error in the Social Security Account Number (SSAN) listed in Item 3 (Social
Security Number) of his separation document (DD Form 214).  He further
states that he was told he would receive a general, under honorable
conditions discharge (GD).

3.  The applicant provides a copy of his DD Form 214 in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 5 January 1973.  The application submitted in this case is
dated
13 May 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 enlisted into the Regular Army and
entered active duty on 19 February 1971.  He was awarded and served in
military occupational specialty (MOS) 12A (Pioneer), and the highest rank
he attained while serving on active duty was private first class/E-3 (PFC).


4.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.  His disciplinary
history includes his acceptance of nonjudicial punishment (NJP) under the
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on
two separate occasions.

5.  On 13 March 1972, he accepted NJP for disobeying a lawful order, and on

26 July 1972, he accepted NJP for being absent without leave (AWOL) from on
or about 18 through on or about 26 July 1972.

6.  On 8 December 1972, a Charge Sheet (DD Form 458) was prepared
preferring a court-martial charge against the applicant for violating
Article 86 of the UCMJ by being AWOL from on or about 15 September through
on or about
7 December 1972.

7.  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.

8.  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.

9.  On 2 January 1973, the separation authority approved the applicant’s
request for discharge, and directed that he receive an UD and be reduced to
the lowest enlisted grade.  On 5 January 1973, the applicant was discharged
accordingly.  The DD Form 214 he was issued shows he completed a total of 1
year of creditable active military service and that he accrued 317 days of
time lost due to AWOL.  Item 3 of the DD Form 214 contains an error in the
third digit of the applicant’s SSAN, which was corrected with a pen and ink
change at the time.

10.  On 7 June 1976, 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.

11.  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.

12.  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.  The applicant's contention that he received the discharge of another
Soldier was carefully considered.  However, there is insufficient evidence
to support this claim.  The applicant’s separation packet confirms he was
processed for separation in lieu of trail by court-martial at his own
request, and that the separation authority appropriately directed he
receive an UD, which was consistent with the regulatory policy in effect at
the time.

3.  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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 7 June 1976; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 6 June 1979.  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.

5.  The evidence of record does show that an administrative pen and ink
correction was made to the SSAN listed in Item 3 of the applicant’s DD Form
214.  This error should have been properly corrected at the time and the
pen and ink correction made was inappropriate.  Therefore, it would be
appropriate to issue the applicant a correction to this separation document
with the correct SSAN at this time.  This is an administrative matter that
does not require action by the Board.  Therefore, an administrative
correction of the applicant's records will be accomplished by the Case
Management Support Division (CMSD),
St. Louis, Missouri, as outlined by the Board in paragraph 3 of the
BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___KLW_  __DED __  __QAS__  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.

3.  The Board determined that administrative error in the records of the
individual should be corrected.  Therefore, the Board requests that the
CMSD-St. Louis administratively correct the records of the individual
concerned by amending
Item 3 of his DD Form 214 by deleting the third digit of the current SSAN
entry and replacing it with the digit “9”; and by providing him a
correction to his separation document that reflects this change.




                                  _____Kenneth L. Wright___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050007874                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/01/10                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1973/01/05                              |
|DISCHARGE AUTHORITY     |AR635-200 . . . . .                     |
|DISCHARGE REASON        |Chapter 10                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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