RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           20 December 2005
      DOCKET NUMBER:  AR20050009117


      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. Ted S. Kanamine               |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Ms. Jeanette B. McPherson         |     |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 to a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, he was separated for the good of the
service and never received his discharge.  He claims that he was told his
discharge could be upgraded to a GD.

3.  The applicant provides a self-authored statement, Department of
Veterans Affairs (VA) Identification Card and two birth certificates in
support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 16 May 1969.  The application submitted in this case is
dated
15 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’s record shows he enlisted in the Regular Army and
entered active duty on 20 March 1968.  He was trained in and awarded
military occupational specialty (MOS) 11B (Infantryman).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) documents no
acts of valor, significant achievement, or service warranting special
recognition. Item 33 (Appointments and Reductions) shows he entered active
duty as a private/E-1 (PV1) and never advanced above that rank while he was
serving on active duty.

5.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.  A Record of Court-
Martial Conviction (DA Form 20B) show he had three separate Special Court-
Martial (SPCM) convictions for violating Article 86 of the Uniform Code of
Military Justice (UCMJ) by being absent without leave (AWOL).

6.  On 7 June 1968, a SPCM convicted the applicant of violating Article 86
of the UCMJ by being AWOL from on or about 18 through on or about 22 May
1968, and from on or about 25 May through on or about 1 June 1968.  The
resultant sentence included confinement at hard labor for 4 months
(suspended) and forfeiture of $45.00 per month for 4 months.

7.  On 11 September 1968, a SPCM convicted the applicant of violating
Article 86 of the UCMJ by being AWOL from on or about 15 July through on or
about 15 August 1968.  The resultant sentence included confinement at hard
labor for 4 months (suspended) and a forfeiture of $68.00 per month for 4
months.

8.  On 5 February 1969, a SPCM convicted the applicant of violating Article
86 of the UCMJ by being AWOL from on or about 17 December 1968 through on
or about 18 January 1969, and of violating Article 134 by escaping from
correctional custody on or about 17 December 1968.  The resultant sentence
included confinement at hard labor for 4 months and a forfeiture of $73.00
per month for
4 months.

9.  The record also shows that the applicant accepted nonjudicial
punishment (NJP) under the provisions of Article 15 of the UCMJ on the
following six separate occasions for the offense(s) indicated:  22 April
1968, for being AWOL; 1 May 1968, for two specifications of being AWOL; 11
May 1968, for being AWOL; 22 May 1968, for being AWOL; 12 June 1968, for
being AWOL; and 5 December 1968, for two specifications of being AWOL.

10.  The available evidence does not include a separation packet containing
the specific facts and circumstances surrounding the applicant’s separation
processing.  The record does contain a properly constituted DD Form 214
that identifies the authority and reason for his separation.  This document
confirms that on 16 May 1969, he was separated under the provisions of
chapter 10,
Army Regulation 635-200, for the good of the service, in lieu of trial by
court-martial.  It also shows he completed a total of 7 months and 8 days
of creditable active military service, and that he accrued a total of 198
days of time lost due to AWOL and confinement.

11.  There is no indication that the applicant applied to the Army
Discharge Review Board (ADRB) for an upgrade of his discharge within the
ADRB’s 15-year statute of limitations.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he never received a discharge and that
he was told he could have his discharge upgraded to a GD was carefully
considered.  However, these factors are not sufficiently mitigating to
warrant an upgrade of his discharge at this time.

2.  The available evidence does not include a separation packet containing
the  specific facts and circumstances surrounding the applicant’s final
discharge processing.  However, it does include a properly constituted DD
Form 214 that identifies the reason and characterization of the applicant’s
final discharge.  Therefore, Government regularity in the discharge process
is presumed.

3.  The applicant’s separation document confirms he was discharged under
the provisions of chapter 10, Army Regulation 635-200, for the good of the
service, in lieu of trial by court-martial.  In connection with such a
discharge, he was charged with the commission of an offense punishable with
a punitive discharge under the UCMJ.  Procedurally, he was required to
consult with defense counsel, and to voluntarily request separation from
the Army in lieu of trial by court-martial.  In doing so, he would have
admitted guilt to the stipulated offense(s) under the UCMJ that authorized
the imposition of a punitive discharge.

4.  In the absence of information to the contrary, it is concluded that all
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout the separation process.

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 should have discovered the alleged error or
injustice now under consideration on 16 May 1969.  Therefore, the time for
him to file a request for correction of any error or injustice expired on
15 May 1972. 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 timely file in this
case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___TSK _  __RLD   _  __JBM__  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.




            ____Ted S. Kanamine____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050009117                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/12/22                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1969/05/16                              |
|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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