RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 August 2006
      DOCKET NUMBER:  AR20050015940


      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 that his 2nd discharge be upgraded to an
honorable discharge.

2.  The applicant states, in effect, that when he reenlisted over 30 years
ago he did not receive his reenlistment option so he requested a discharge.
 The Army gave him an undesirable discharge which should not have happened.
 He further stated that if his discharge was upgraded to honorable
conditions he would be entitled to Veterans Administration benefits.

3. The applicant does not provide any additional documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 21 May 1975, the date of his discharge from active duty.
The application submitted in this case is dated 26 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 record shows he enlisted and entered active duty on 13
June 1972 for a period of 2 years.  He completed basic combat training and
advanced individual training, and was awarded the military occupational
specialty  
11B10 (Light Weapons Infantryman).

4.  On 1 April 1974, the applicant’s record shows that while he was
assigned to Fort Riley, Kansas, he reenlisted for Continental United States
(CONUS) station of choice, for Fort Benning, Georgia.  Accordingly, he was
assigned to Fort Benning, Georgia on 1 August 1974.

5.  Item 21 (Time Lost), of the applicant's DA Form 2-1 (Personnel
Qualification Record) shows he was absent without leave (AWOL) during the
period 21 May 1974 to 18 June 1974, and for the period 5 October 1974 to 7
April 1975.

6.  On 8 April 1975, record shows that the applicant was apprehended by
civilian authorities in Eldorado, Kansas, and the civilian authority
transported the applicant to military authorities at Fort Carson, Colorado
on 17 April 1985.

7.  On 17 April 1975, 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 under other than honorable conditions discharge, and of the
procedures and rights that were available to him.  After receiving this
legal counsel, the applicant voluntarily requested discharge for the good
of the service, in lieu of trial by court-martial.

8.  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
(VA), 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 under other than honorable
conditions discharge.

9.  On 5 May 1975, the separation authority approved the applicant’s
request for discharge and directed that he receive an undesirable
discharge.  On 31 May 1975, the applicant was discharged accordingly.  The
DD Form 214 (Report of Separation from Active Duty) he was issued confirms
he completed a total of  
2 years, 6 months, and 7 days of creditable active military service and
that he accrued 214 days of time lost due to AWOL.

10.  There is no indication that the applicant applied to the Army
Discharge Review Board for an upgrade of his discharge within its 15-year
statue of limitations.

11.  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 at any time after the charges have been preferred, submit a
request for discharge for the good of the service in lieu of trail by court-
martial.  A discharge under other than honorable conditions is normally
considered appropriate.

12.  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.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his 2nd discharge be upgraded to an
honorable discharge.

2.  Evidence of records show that the applicant did in fact receive his
reenlistment option for CONUS station of choice to Fort Benning, Georgia.
In spite of the fact that the applicant did receive his reenlistment option
he still departed AWOL.  The applicant's record shows that he accrued 214
days of lost time due to being AWOL.

3.  Based on this record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  The length of the applicant's absence without leave
renders his service unsatisfactory.  The Board does not correct properly
constituted records just to establish entitlement to a privilege or
benefit.  Therefore, he is not entitled to an honorable discharge or to a
general discharge.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 21 May 1975; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on  
20 May 1978.  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

___ded__  ____jea__  ___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                 |AR20050015940                           |
|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.                      |                                        |


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