RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:       1 August 2006
      DOCKET NUMBER:  AR20050014622


      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. Loretta D. Gulley             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. Conrad V. Meyer               |     |Member               |
|     |Ms. Yolanda Maldonado             |     |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, characterized as
Under Other Than Honorable Conditions, be upgraded.

2.  The applicant states, in effect, persons in his chain of command failed
to aid him in resolving his pay problems.  The financial, marital and
service related problems he experienced were a direct result of the failure
of persons in his chain of command to adequately assist and advise him with
his problem.

3.  The applicant provides no additional documentation in support of this
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 6 November 1973, the date of his release from active
duty.  The application submitted in this case is dated 1 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 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 the Regular Army on 30 June 1972, for a
period of three years.  He completed the required training and was awarded
military occupational specialty 63A (Mechanic Maintenance Helper).  The
highest rank he attained while serving on active duty was Private First
Class (E-3).

4.  The applicant's record documents no acts of valor, significant
achievement or service warranting special recognition.

5.  The record reveals that the applicant was reported Absent without Leave
(AWOL) on 7 June 1973.  His duty status was changed from AWOL to Dropped
From the Rolls (DFR) on 6 July 1973.  The applicant surrendered and was
returned to military control on 6 September 1973.

6.  On 11 September 1973, the applicant consulted with legal counsel and
was advised of the basis for the contemplated separation action, the
effects of a discharge under other than honorable conditions and furnished
an Undesirable Discharge Certificate, and furnished an Undesirable
Discharge Certificate.  He was advised of the rights available to him.  The
applicant voluntarily requested discharge for the good of the service in
lieu of trial by court-martial.  In his request for discharge, he
acknowledged that he was guilty of the charge against him or of a lessor-
included offense therein contained which also authorized the imposition of
a bad conduct or dishonorable discharge.  He further stated that under no
circumstances did he desire further rehabilitation, he had no desire to
perform further military service.  He also stated, his understanding that
if is 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 Veteran 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 he could encounter
substantial prejudice in civilian life by reason of an undesirable
discharge.

7.  On 12 October 1973, the separation authority approved the applicant’s
request for discharge and directed that he be reduced to the grade of E-1
and issued an Undesirable Discharge Certificate.  On 6 November 1973, the
applicant was discharged accordingly.  The separation document (DD Form
214) he was issued confirms he completed 1 year, 1 month, and 22 days of
creditable active military service with 91 days lost time due to AWOL.

8.  Army Regulation 635-200 (Personnel Separations) 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, submit a request for discharge for the good of the service
in lieu of trial by court-martial.  The request may be submitted at any
time after charges have been preferred and must include the individual's
admission of guilt.  Although an honorable or general discharge is
authorized, a discharge under other than honorable conditions is normally
considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions was carefully considered and found to have
insufficient merit in this case.  Therefore, given the circumstances in
this case his overall undistinguished record of service, there is
insufficient evidence to support his request at this time.

2.  The evidence of record confirms that the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, the applicant voluntarily
requested discharge for the Army in lieu of trial by court-martial.  All
requirements of law and regulation were met, the rights of the applicant
were fully protected throughout the separation process and his discharge
accurately reflects hi overall record of short and undistinguished service.

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 that applicant should have discovered the alleged error or
injustice now under consideration on 6 November 1973; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 5 November 1976.  The applicant did not file within
the 3-year statue 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

__KAN__  __CVM___  ___YM__  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.




                                  ____Kathleen A. Newman____
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050014622                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/08/01                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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