RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 August 2006
      DOCKET NUMBER:  AR20050016365


      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. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. Dean A. Camarella             |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |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 discharge be upgraded.

2.  The applicant states that he was young and immature at the time of his
offense.  He was told when he was discharged that his discharge would be
upgraded in 6 months, and now he is pursuing an update to his discharge.

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 29 October 1976, the date of his discharge from active
duty.  The application submitted in this case is dated 25 August 2005;
however, was not received for processing until 15 November 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 in the Regular Army on  
25 February 1976.  He completed basic combat training but did not complete
advanced individual training.

4.  Item 21 (Time Lost), of the applicant's DA Form 2-1 (Personnel
Qualification Record) shows he had departed absent without leave (AWOL)
from 1 June 1976 through 8 August 1976 and from 12 August 1976 through 8
September 1976.  He was also in civilian confinement from 14 September
through 28 September 1976.

5.  On 10 August 1976, charges were preferred against the applicant for
being AWOL from on about 1 June 1976 to on or about 9 August 1976.  On 10
September 1976, charges were preferred against the applicant for being AWOL
from on about 12 August 1976 to on or about 9 September 1976.


6.  On 10 September 1976, 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.  Subsequent to receiving
this legal counsel, the applicant voluntarily requested discharge for the
good of the service, in lieu of trial by court-martial.

7.  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.

8.  On 21 October 1976, the separation authority approved the applicant’s
request for discharge and directed that he receive an Undesirable Discharge
Certificate and be reduced to the pay grade of Private/E-1.  On 29 October
1976, the applicant was discharged accordingly.  The DD Form 214 (Report of
Separation from Active Duty) he was issued confirms he completed a total of
4 months and 15 days of creditable active military service and that he
accrued 110 days of time lost due to AWOL and confinement.

9.  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.

10.  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.


11.  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.

12.  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 requested that his discharge be upgraded.

2.  The applicant's record of service shows he was absent without leave for
110 days.

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 fact that the applicant stated
that he was too young and too immature at the time of his enlistment, is
not sufficient enough for the Board to grant relief in this case.
Therefore, he is not entitled to an upgrade to an honorable discharge or to
a general discharge.

4.  Army regulations do not provide for the automatic upgrading of
discharges.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 29 October 1976; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on  
28 October 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

___rtd___  ___rmn__  ____dac_  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.




                                  __________Richard T. Dunbar______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016365                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060817                                |
|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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