RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 JULY 2006
      DOCKET NUMBER:  AR20050016765


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Meixell                  |     |Chairperson          |
|     |Mr. Jeffrey Redmann               |     |Member               |
|     |Mr. Edward Montgomery             |     |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 records be corrected by upgrading his
discharge to general.

2.  The applicant states that he was discharged because he was a
conscientious objector.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
4 October 1972.  The application submitted in this case is dated 7 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 was inducted into the Army of the United States on 25
January 1971, for a period of 2 years.

4.  On 7 April 1971, the applicant was convicted by a special court-martial
of being absent without leave (AWOL) from 4 February 1971 to 23 March 1971.

He was sentenced to confinement at hard labor for 100 days and forfeiture
of $50.00 a month for 3 months.

5.  The applicant's DA Form 20 (Enlisted Qualification Record) indicates
the applicant was AWOL from 24 March 1971 to 12 May 1971, 7 July 1971 to 19
July 1971, 24 July 1971 to 26 August 1972, and from 27 August 1972 to 29
August 1972.

6.  On 7 September 1972, the applicant's commander preferred court-martial
charges against him for being AWOL from 7 June 1971 to 19 July 1971 and
from 24 July 1971 to 27 August 1972.
7.  On 7 September 1972, after consulting with legal counsel, the applicant
voluntarily submitted a request for discharge for the good of the service,
under Army Regulation 635-200, Chapter 10, in lieu of trial by court-
martial.  He acknowledged that he understood the effects of receiving an
under other than honorable conditions characterization of service.  He also
acknowledged that he understood that he may be deprived of many or all Army
benefits and that he may be ineligible for many or all benefits
administered by the Veterans Administration [now known as the Department of
Veterans Affairs], and that he may be deprived of his rights and benefits
as a Veteran under both Federal and State law.

8.  The applicant submitted a statement with his request in which he stated
that he had a difficult childhood with being placed in an orphanage, foster
care, and abuse by a stepfather.  He stated that he could not read or write
when he enlisted in the Army and went AWOL because he was having trouble
understanding the sergeants and following instructions.  He realized that
it was wrong to go AWOL, but was confused and took off without thinking of
the consequences.  He wanted to be discharged so he could go home and help
his mom support his 6 other brothers and sisters.

9.  On 19 September 1972, his commander recommended approval of his
discharge request with the issuance of an undesirable discharge.

10.  On 4 October 1972, the appropriate separation authority approved his
request and directed the issuance of an Undesirable Discharge Certificate.

11.  On 4 October 1972, the applicant was discharged under the provisions
of Army Regulation 635-200, Chapter 10, with an undesirable discharge,
characterized as under other than honorable conditions.  His DD Form 214
indicates he had 3 months and 25 days of creditable service and 502 days of
lost time.

12.  Army Regulation 635-200, then in effect, set forth the basic authority
for the separation of enlisted personnel.  Chapter 10 of that regulation
provided, in pertinent part, that a member who had committed an offense or
offenses for which the authorized punishment included a punitive discharge
could at any time after the charges had been preferred; submit a request
for discharge for the good of the service in lieu of trial by court-
martial.  At the time of the applicant’s separation, the regulation
provided for the issuance of an undesirable discharge.



DISCUSSION AND CONCLUSIONS:

1.  The applicant voluntarily requested separation under Army Regulation
635-200, Chapter 10, for the good of the service to avoid trial by court-
martial.  The character of his discharge is commensurate with his overall
record of military service.

2.  There is no evidence in the available records nor did the applicant
provide documentation to substantiate his claim that he was discharged
because he was a conscientious objector.

3.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 4 October 1972; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
3 October 1975.  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

___JM  __  ___JR   _  __EM ___  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.




                                  ______John Meixell_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016765                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060727                                |
|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.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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