RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 August 2006
      DOCKET NUMBER:  AR20050016706


      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. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. John G. Heck                  |     |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, in effect, that his discharge be upgraded to an
honorable discharge.

2.  The applicant states, in effect, that he enlisted in the Army as a
Combat Engineer Vehicle Driver.  He was trained at Fort Knox, Kentucky, was
transferred to Germany, and was forced into a signal unit.  He also had to
endure three racial riots which he did not participate in.  He states that
he is now 100% disabled from a car accident in which he was rear-ended and
he does not know how much time he has left.

3.  The applicant provides no additional information in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 15 October 1973.  The application submitted in
this case is dated
1 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 and
entered active duty on 21 January 1972, for a period of 3 years.  He was
trained in, awarded and served in military occupational specialty (MOS)
12F10 (Combat Engineer Vehicle Driver).  The highest grade he attained was
pay grade E-4.

4.  On 18 June 1973, the applicant accepted nonjudicial punishment (NJP)
for being absent without leave (AWOL) from 5 to 7 June 1973, for disobeying
a lawful order from his superior commissioned officer, and for leaving his
appointed place of duty without proper authority.  His imposed punishment
was a reduction to pay grade E-2 and 7 days in correctional custody.

5.  On 10 July 1973, the applicant accepted NJP for disobeying a lawful
order from his superior noncommissioned officer.  His imposed punishment
was a forfeiture of $79.00 pay, 7 days restriction, and 7 days extra duty.

6.  On 4 September 1973, court-martial charges were preferred against the
applicant for being AWOL from 1 to 29 August 1973.

7.  On 28 September 1973, the applicant consulted with legal counsel and
was advised of the basis for the contemplated separation action, the
effects of an undesirable discharge and 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 lesser
included offense therein contained which also authorizes the imposition of
a bad conduct or dishonorable discharge.  He further stated that under no
circumstances did he desire further rehabilitation, for he had no desire to
perform further military service.  He also stated his understanding 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 further indicated that he understood that he could encounter
substantial prejudice in civilian life by reason of an undesirable
discharge.

8.  On 3 October 1973, the separation authority approved the applicant’s
request for discharge and directed that he receive an Undesirable Discharge
Certificate.  On 15 October 1973, the applicant was discharged accordingly.
 The separation document (DD Form 214) he was issued confirms he completed
1 year,
8 months and 25 days of creditable active military service.  He was awarded
the National Defense Service Medal and the Marksman Marksmanship
Qualification Badge with rifle bar.

9.  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.
An undesirable discharge is normally considered appropriate.

10.  On 7 March 1980, the Army Discharge Review Board (ADRB) upgraded the
applicant’s discharge to a general, under honorable conditions discharge.

11.  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 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 ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the Board 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 contention of the applicant was carefully considered and found to
be insufficient evidence to support granting the relief requested in this
case.

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 from 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 his overall record of short and undistinguished
service.

3.  The applicant’s conduct was inconsistent with the Army’s standards for
acceptable personal conduct and his overall quality of service was not so
meritorious as to warrant a fully honorable discharge.  Therefore, there is
no evidence nor has the applicant presented any evidence to warranted
relief beyond that already provided by the ADRB.

4.  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.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 7 March 1980.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 6 March 1983.  However, he failed to
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 file in this case.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__SLP___  __RML__  __JGH__  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.




                                  ___Shirley L. Powel____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/08/15                              |
|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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