RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 August 2006
      DOCKET NUMBER:  AR20050015364


      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. Dean L. Turnbull              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Dale E. DeBruler              |     |Member               |
|     |Mr. James R. Hastie               |     |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 his undesirable discharge be upgraded to an
honorable discharge.

2.  The applicant states in effect, that he was incompetent at the time of
his discharge.  He says that he was too slow to understand what the Army
was trying to teach him during his training.  As a result he claims his
undesirable discharge was an injustice.

3.  The applicant provides no additional documentation in support of his
case.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 27 July 1973, the date of his discharge from active duty.
 The application submitted in this case is dated 6 October 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 records show he enlisted in the Regular Army on 11 July
 
1972.  He attended basic combat training and entered into training for
military occupational specialty 51B10 (Carpentry and Masonry Specialist).

4.  On 8 December 1972, the applicant accepted nonjudicial punishment (NJP)
under the provisions of Article 15, Uniform Code of Military Justice
(UCMJ), for misconduct.  His punishment consisted of a forfeiture of $67
per month for one month, extra duty for a period of 7 days, and restriction
for a period of 7 days.

5.  On 28 February 1973, the applicant accepted NJP under the provisions of
Article 15, UCMJ, for misconduct.  His punishment consisted of a forfeiture
of $30 per month for one month, extra duty for a period of 7 days, and
restriction for a period of 14 days.

6.  On 1 March 1973, the applicant accepted NJP under the provisions of
Article 15, UCMJ, for being absent without leave (AWOL).  His punishment
consisted of a forfeiture of $50 per month for one month.

7.  Record shows the applicant was subsequently transferred to Company D,
2nd Battalion, 4th Brigade, United States Army Training Center, Fort
Leonard Wood, Missouri.  While he was assigned to Fort Leonard Wood he was
AWOL from 7 March 1973 to 8 March 1973.

8.  On 9 March 1973, the applicant again departed AWOL.  His records show
he was dropped from the rolls on 12 March 1973 and he remained AWOL until
3 June 1973.  On 4 June 1973, the applicant was returned to duty pending
charges.

9.  On 19 June 1973, charges were preferred against the applicant for being
AWOL during the period 9 March 1973 to 3 June 1973.

10.  The applicant's service records contain Standard Form 88 (Report of
Medical Examination), dated 21 June 1973, wherein the applicant was found
to be normal psychiatrically and was determined medically qualified for
separation.

11.  On 6 July 1973, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
maximum permissible punishment authorized under the UCMJ, the possible
effects of an undesirable discharge, and of the procedures and rights that
were available to him.  On  
6 July 1973, the applicant voluntarily requested discharge for the good of
the service, in lieu of trial by court-martial.

12.  In his request for discharge, the applicant indicated that he
understood that by requesting discharge, he was admitting guilt to the
charge against him, or of a lesser included offense, that also authorized
the imposition of a bad conduct or dishonorable discharge.  He further
acknowledged he understood that if his 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 Veterans
Affairs, and that he could be deprived of his rights and benefits as a
veteran under both Federal and State law.  He also acknowledged that he
understood that he may expect to encounter substantial prejudice in
civilian life by reason of an undesirable discharge.

13.  On 22 July 1973, the separation authority approved the applicant’s
request for discharge and directed that he receive an undesirable
discharge.  He was reduced in rank from Private E-2 to Private E-1.  On 27
July 1973 the applicant was discharged.  The DD Form 214 he was issued
shows he completed a total of 9 months and 20 days of creditable active
military service and that he accrued  
89 days of time lost.

14.  The applicant applied to the Army Discharge Review Board (ADRB) on
3 July 1974.  The ADRB reviewed the applicant's record and determined that
his discharge was proper and equitable.  The ADRB noted, in effect, that
the applicant was properly discharged in accordance with Army Regulation  
635-200 (Enlisted Personnel), Chapter 10.  The applicant had a serious AWOL
offense which was not mitigated by anything in the record or submitted with
his appeal.  On that basis the applicant’s request for upgrade of his
discharge was denied.

15.  On 10 March 1979 the applicant requested to appear before ADRB, and
was approved to appear before the Travel Panel in St. Louis, MO, which was
scheduled for June 1981.  The ADRB sent a notification to the applicant to
inform him of the scheduled date; however, the applicant did not respond to
the notification.

16.  On 7 August 1981, ADRB reviewed the applicant's record and determined
that his discharge was proper and equitable; therefore, his request for
change of the nature of his discharge was again denied.

17.  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.  However, at the time of the applicant's separation the
regulation provided for the issuance of an undesirable discharge.

18.  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.



19.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.

20.  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 requested that his undesirable discharge be upgraded to
an honorable discharge.

2.  Evidence shows the applicant was AWOL during the period 7 March 1973
to 
8 March 1973 and 9 March 1973 to 3 June 1973.  As such, an undesirable
discharge was equitable and proper.

3.  The applicant has not submitted any evidence to show that he was
incompetent while he was on active duty.  To the contrary, his separation
physical examination found that he was normal psychiatrically.

4.  Based on his record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  The extensive length of his AWOL renders his service
unsatisfactory. Therefore, he is not entitled to either an honorable or a
general discharge.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 7 August 1981.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 6 August 1984.  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

___jea___  ___ded__  ___jrh___  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. Anderholm_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050015364                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060808                                |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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