RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 JULY 2006
      DOCKET NUMBER:  AR20050014442


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Robert Osborn                 |     |Chairperson          |
|     |Mr. John Moeller                  |     |Member               |
|     |Ms. Naomi Henderson               |     |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 records be corrected by upgrading his
general discharge to honorable.

2.  The applicant states that he wants to reenlist in the Army to serve his
country and to fulfill his obligation.  In an attempt to resolve his
reenlistment issue he wrote the President of the United States for help in
upgrading his discharge.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation
from Active Duty), his letter to President Bush and responses from the
White House and the Department of the Army, U.S. Army Reserve Personnel
Command, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error that
occurred on
23 October 1973, the date of his discharge from active duty.  The
application submitted in this case is dated 23 September 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 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 the Regular Army on 14 November 1972.  He
successfully completed basic and advanced individual training at Fort
Jackson, South Carolina.

4.  On 12 June 1973, the applicant accepted nonjudicial punishment under
the provisions of Article 15, Uniform Code of Military Justice, for being
absent without leave (AWOL) from 4 June 1973 to 11 June 1973.  His
punishments included reduction, correctional custody, and a forfeiture of
pay.

5.  On 5 September 1973, his commander preferred court-martial charges
against him for being AWOL from 15 June 1973 to 20 July 1973, and from
7 August 1973 to 2 September 1973.

6.  On 10 September 1973, after consulting with legal counsel, the
applicant voluntarily submitted a request for discharge for the good of the
service, under Army Regulation 635-200, Chapter 10, in lieu of trial by
court-martial.  He indicated he understood he could be denied some or all
veterans' benefits as a result of his discharge and that he may be deprived
of rights and benefits as a veteran under both Federal and State law.

7.  On 13 September 1973, a Medical examination and a Mental Status
Evaluation cleared the applicant for separation.

8.  On 18 September 1973, the applicant's commander recommended approval of
his discharge request, with the issuance of an undesirable discharge.  His
commander noted that when he interviewed the applicant he stated that his
AWOLs were caused by his desire to get out of the Army by whatever means
available to him.  He rated the applicant's conduct and efficiency as
unsatisfactory.

9.  On 1 October 1973, the applicant's senior commander recommended
approval of his discharge request with the issuances of an undesirable
discharge.

10.  On 15 October 1973, the appropriate separation authority approved the
applicant's discharge request with the issuance of an undesirable
discharge.

11.  On 23 October 1973, the applicant was discharged under the provisions
of Army Regulation 635-200, Chapter 10, for the good of the service in lieu
of trial by court-martial.  His DD Form 214 indicates he had 11 months and
10 days of active duty, and 78 days of lost time.

12.  On 25 March 1977, the applicant applied to the Army Discharge Review
Board (ADRB) for an upgrade of his discharge.

13.  On 18 August 1977, the ADRB determined that the applicant was properly
discharged, but that based on current policy, his discharge was not
equitable.  The ADRB upgraded the applicant's discharge to general, under
honorable conditions.

14.  On 30 June 2005, the applicant petitioned President Bush for help in
upgrading his discharge.  His letter was referred to this agency for a
response.  This agency provided him with information which allowed him to
submit his current application for consideration by this Board.

15.  Army Regulation 635-200, then in effect, set forth the basic authority
for the separation of enlisted personnel.  Chapter 10 of that regulation
provided, in pertinent part, that a member who had committed an offense or
offenses for which the authorized punishment included a punitive discharge
could at any time after the charges had been preferred, submit a request
for discharge for the good of the service in lieu of trial by court-
martial.  At the time of the applicant’s separation, the regulation
provided for the issuance of an undesirable discharge, under other than
honorable conditions discharge.

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.  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 voluntarily requested separation under Army Regulation
635-200, Chapter 10, for the good of the service, to avoid a trial by court-
martial.

2.  The applicant’s administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
error which would tend to jeopardize his rights.

3.  The ADRB determined that under current standards the applicant's
discharge was not equitable and upgraded his discharge to general, under
honorable conditions.  This Board agrees with the findings and conclusions
by the ADRB, and finds no justification for further upgrading the
applicant's discharge.

4.  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 that requirement.
5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 18 August 1977.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 17 August 1980.  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

___RO __  ___JM __  ___NH __  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.




                                  _____ Robert Osborn_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050014442                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060713                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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