RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 May 2006
      DOCKET NUMBER:  AR20050011316


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Mr. William F. Crain              |     |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),
characterized as under other than honorable conditions, be upgraded to a
hardship discharge.

2.  The applicant states, in effect, that his grandfather was ill and he
accepted an UD to remain with him.  At that time, he was unaware of the
procedures for applying for a hardship discharge.

3.  The applicant provides a copy of an additional statement.  In his
statement, he states that at the time of his discharge, he was absent
without leave (AWOL) due to the fact that he was taking care of his
grandfather, who was very ill.  He finally got someone to remain with him,
while he returned to Fort Knox to be discharged.  He was unaware of the
procedures on applying for a hardship discharge.  He now feels that in this
present day that he would have received a hardship discharge.  He does not
know if his discharge could be considered unjust because he was never
informed of a hardship discharge at the time of his separation.

4.  The applicant provides copies of several character reference letters
and a copy of his DD Form 214 (Report of Separation from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 16 August 1976, the date of his discharge.  The
application submitted in this case is dated 12 July 2005 but was received
on 3 August 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 military records show he entered active duty (AD) on
18 June 1974, as a metal worker (44B).  He was promoted to specialist four
(SP4/E-4) on 29 May 1975.



4.  On 11 February 1976, the applicant departed from his unit in an AWOL
status. He remained AWOL until he was apprehended by civilian authorities
on 10 July 1976 and returned to military control on the same day.

5.  Charges were preferred against the applicant on 27 July 1976, for being
absent without leave (AWOL) from 11 February 1976 to 10 July 1976. 

6.  Item 21 (Time Lost), of his DA Form 20 (Enlisted Qualification Record),
shows that he was AWOL from 11 February 1976 to 9 July 1976 (150 days).

7.  On 29 July 1976, he consulted with counsel and voluntarily requested
discharge, for the good of the service, in lieu of trial by court-martial,
under the provisions of Army Regulation 635-200, chapter 10.  In doing so,
he acknowledged that he might encounter substantial prejudice in civilian
life and might be ineligible for many or all benefits administered by the
Veterans Administration (VA) if an undesirable discharge were issued.  He
waived his rights and elected to submit a statement in his own behalf.

8.  In his statement, he stated that he thought he would get to work in the
job that he had been working in while he was a civilian and be stationed
close to home.  He went home on a 3 day weekend, had an accident, and
remained home a few days to take care of some legal problems.  After he had
taken care of his legal problems, he returned to Fort Campbell, Kentucky.
His grandfather became ill and he did not have anyone to remain with him.
He decided to remain with him for a while because he had lived with him all
of his life.  After he remained with him for a while, he discovered that he
was not getting any better and decided not to return to Fort Campbell.  He
states that the Army may be alright for some people but it was not for him
and it would benefit the Army if he was discharged.  He states he would be
very disappointed and would go AWOL again more than likely if his discharge
was disapproved.

9.  On 6 August 1976, the separation authority approved the applicant's
request for discharge and directed that he be furnished an undesirable
discharge and that he be reduced to the lowest enlisted grade.  The
applicant was discharged on 16 August 1976.  He had a total of 1 year and
9 months of creditable service and had 150 days of lost time due to AWOL.

10. The applicant provides several character reference letters from friends
and family members in support of his request.  They attest to his post
discharge character, moral responsibilities, and involvement in community
activities.  The references also state that he was well respected in the
community.

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

12.  Army Regulation 635-200 sets forth the basic authority for 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 undesirable discharge.

13.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 6 of that regulation provides,
in pertinent part, for the separation of personnel because of genuine
dependency or hardship.  An application for such separation will be
approved when a service member can substantiate that his situation or
immediate family's situation has been aggravated to an excessive degree
since enlistment, that the condition is not temporary and that discharge
will improve the situation.

14.  Paragraph 6-3a, provides for separation because of dependency.
Dependency exists when death or disability of a member of a Soldier’s (or
spouse’s) immediate family causes that member to rely upon the Soldier for
principal care or support.

15.  Paragraph 6-3b, provides for separation due to hardship.  A hardship
exists when, in circumstances not involving death or disability of a member
of the Soldier’s (or spouse’s) immediate family, separation from the
service will materially affect the care or support of the family by
alleviating undue and genuine hardship.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, for the good of the service, to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.  There is no indication that the
applicant's request for discharge was made under coercion or duress.

2.  The type of discharge directed and the reasons for that separation were
appropriate considering all of the facts of the case. 

3.  The applicant has provided insufficient evidence to show that his
discharge was unjust.  He also has not provided evidence sufficient to
mitigate the character of his discharge.

4.  The applicant contends that his grandfather was ill and he accepted an
UD to remain with him and was unaware of the procedures for applying for a
hardship discharge.  He was in an AWOL status due to the illness of his
grandfather and later returned to be discharged.  He felt that in this
present day, he would have received a hardship discharge.

5.  It is apparent that the applicant could have informed his commander of
his family emergency and not resorting to departing in an AWOL status.  His
commander could have provided him with some support directed towards
alleviating his family emergency and/or assistance towards applying for a
dependency or hardship discharge, if he were otherwise qualified.

6.  The applicant chose to depart AWOL, which was an unauthorized absence,
to care for his grandfather and remained AWOL for 150 days.  The applicant
could have availed himself to the service of agencies that would have
provided the necessary assistance to address his problems; however, he
resorted to AWOL which compounded his problems.  There is no evidence of
record, and the applicant has provided none, to show that he requested a
hardship discharge.

7.  The character reference letters which attest to the applicant's post
discharge character and moral responsibilities and his involvement in
community business were considered in the processing of this case.
However, these post-service accomplishments are not sufficiently mitigating
to warrant an upgrade of his discharge.

8.  There is no evidence in the applicant's records, and the applicant has
provided none, to show that he applied for an upgrade of his discharge to
the ADRB within its 15-year statute of limitations.

9.  In order to justify correction of a military record, the applicant must
show, to the satisfaction of the Board, or it must otherwise appear, that
the record is in error or unjust.  The applicant has failed to submit
evidence that would satisfy this requirement.

10.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 August 1976; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
15 August 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_JEV____  __PM___  _WFC___  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.




                                  ______James E. Vick_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050011316                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060518                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19760816                                |
|DISCHARGE AUTHORITY     |AR 635-200, chapter 10                  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

-----------------------
[pic]