RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            30 MARCH 2006
      DOCKET NUMBER:   AR20050008994


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Meixell                  |     |Chairperson          |
|     |Ms.  Carol Kornhoff               |     |Member               |
|     |Mr. Rowland Heflin                |     |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
honorable.

2.  The applicant states that he was unjustly discharged because at the
time he was having some mental behavior problems but was never diagnosed
with such. However, he has subsequently been diagnosed with post-traumatic
stress disorder and diabetes.

3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged  injustice which
occurred on 25 September 1974.  The application submitted in this case is
dated 7 June 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 Raleigh, North Carolina, on 28 March 1973 for
a period of 4 years, a cash enlistment bonus, assignment to the XVIII
Airborne Corps Artillery and basic training at Fort Ord, California.  He
confirmed with his signature and the annotation “None”, that no other
promises had been made to him.

4.  He completed his basic training at Fort Ord and was transferred to Fort
Bragg, North Carolina, for on-the-job training as a cannoneer.  He was
advanced to the pay grade of E-2 on 28 July 1973.

5.  On 26 October 1973, nonjudicial punishment (NJP) was imposed against
him for failure to go to his place of duty.  His punishment consisted of a
forfeiture of pay, extra duty and restriction.

6.  On 4 February 1974, he was convicted by a special court-martial of
being absent without leave (AWOL) from 14 November 1973 to 20 November
1973, from 26 November 1973 to 27 November 1973, from 3 December 1973 to
5 December 1973 and from 17 December 1973 to 6 January 1974.  He pled
guilty to all of the charges and was sentenced to a reduction to the pay
grade of E-1, confinement at hard labor for 3 months and a forfeiture of
pay.  He was transferred to the Retraining Brigade at Fort Riley, Kansas,
to serve his confinement.  He was released from the Retraining Brigade and
was reassigned to Fort Sill, Oklahoma, on 1 May 1974.

7.  On 10 July 1974, NJP was imposed against the applicant for being absent
from his place of duty.  His punishment consisted of a reduction to the pay
grade of E-1, a forfeiture of pay, extra duty and restriction.

8.  On 24 July 1974, charges were preferred against the applicant for
failure to go to his place of duty, for breaking house arrest and for
breaking restriction.

9.  On 31 July 1974, the applicant underwent a medical/physical examination
and was found fit for retention and/or separation.

10.  On 29 August 1974, after consulting with defense counsel, the
applicant submitted a request for discharge for the good of the service,
under the provisions of Army Regulation 635-200, chapter 10, in lieu of
trial by             court-martial.  In his request he indicated that he
understood the charges that had been preferred against him, that he was
making the request of his own free will, without coercion from anyone and
that he was aware of the implications attached to his request.  He also
admitted that he was guilty of the charges against him or of lesser
included offenses which authorized the imposition of a bad conduct or
dishonorable discharge.  He acknowledged that he understood that he could
receive a discharge under other than honorable conditions and that he might
be deprived of all benefits as a result of such a discharge.  He further
elected to submit a statement in his own behalf in which he stated that the
training at Fort Riley did not help him and that he could not adjust to
Army life.  He also stated that he realized that he made a mistake by
coming into the Army and that he had learned from that mistake.  He went on
to state that he would be able to make it better in civilian life and that
the Army would be better off without him.  He further stated that he
understood that he would receive an undesirable discharge but he would be
better off out of the Army.

11.  The appropriate authority (a major general) approved his request on
20 September 1974 and directed that he be furnished an Undesirable
Discharge Certificate.
12.  Accordingly, he was discharged under other than honorable conditions
on 25 September 1974, under the provisions of Army Regulation 635-200,
chapter 10, in lieu of trial by court-martial.  He had served 1 year and 16
days of total active service and had 166 days of lost time due to AWOL and
confinement.

13.  On 4 July 1976, he applied to the Army Discharge Review Board (ADRB)
for an upgrade of his discharge.  He requested that the ADRB grant him a
discharge that would afford him benefits.  The ADRB, after reviewing all of
the available facts and circumstances of his case determined that his
discharge was both proper and equitable under the circumstances.  The ADRB
voted unanimously to deny his request on 8 June 1977.

14.  On 1 November 1982, he again applied to the ADRB for an upgrade of his
discharge.  He contended at that time that the recruiter had not given him
what he wanted and that if he was given what he asked for, he would prove
himself.  The ADRB opined that the applicant was given what he asked for at
the time and that his discharge was both proper and equitable, given the
circumstances of his case.  The ADRB unanimously denied his request on 1
July 1983 and advised the applicant of his right to apply to this Board.

15.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge
for the good of the service in lieu of trial by court-martial.  A condition
of submitting such a request is that the individual concerned must admit
guilt to the charges against them or of a lesser included offense which
authorizes the imposition of a bad conduct or dishonorable discharge and
they must indicate that they have been briefed and understand the
consequences of such a request as well as the discharge they might receive.
 A discharge under other than honorable conditions is normally considered
appropriate.

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 administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate considering all of the available facts of the case.

3.  The applicant’s overall record of undistinguished service, which
included periods of unauthorized absences and multiple incidents of
misconduct during a short period of service, simply does not rise to the
level of a discharge under honorable conditions.

4.  After being afforded the opportunity to assert his innocence before a
trial by court-martial, he voluntarily requested a discharge for the good
of the service in hopes of avoiding a punitive discharge and having a
felony conviction on his records.  In doing so he admitted guilt to the
charges against him.

5.  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.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 1 July 1983.  As a
result, the time for the applicant to file a request for correction of any
error injustice to this Board expired on 30 June 1986.  The applicant did
not file within the ABCMR's 3-year statute of limitations and has not
provided 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

___JM___  ___CK__  ___RH __  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 Meixell________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050008994                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060330                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1974/09/25                              |
|DISCHARGE AUTHORITY     |AR635-200/ch10 . . . . .                |
|DISCHARGE REASON        |Gd of svc                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |689/a70.00                              |
|1.144.7000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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