RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 AUGUST 2006
      DOCKET NUMBER:  AR20050016830


      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. Paul Smith                    |     |Chairperson          |
|     |Ms. LaVerne Douglas               |     |Member               |
|     |Mr. Ronald Gant                   |     |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 honorable.

2.  The applicant states that he went absent without leave (AWOL) after
returning from Vietnam.  He is a combat veteran and has suffered from Post
Traumatic Stress Disorder (PTSD) since his return from Vietnam.  His PTSD
was a major factor in his decision to go AWOL.

3.  The applicant provides no additional evidence in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 30 August 1973.  The application submitted in this case is
dated 8 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 enlisted in the Regular Army on 28 September 1966, for a
period of 3 years.  He successfully completed basic combat training at Fort
Benning, Georgia, and advanced individual training at Fort Gordon, Georgia.
 He served in Vietnam from March 1967 to June 1968.

4.  On 14 March 1968, he was convicted by a summary court-martial of
allowing a prisoner to escape, through his negligence.  He was sentenced to
perform hard labor without confinement for 45 days, a forfeiture of pay for
1 month, and reduction to Private E-1.

5.  On 30 July 1973, his commander preferred court-martial charges against
him for being AWOL from 23 June 1968 to 18 July 1973.



6.  On 3 August 1973, a medical examination cleared the applicant for
separation.

7.  On 10 August 1973, 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 his request had been submitted of his own
free will.  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, and that he may be deprived of
his rights and benefits as a Veteran under both Federal and State law.

8.  On 10 August 1973, his unit commander recommended approval of his
discharge request.

9.  On 20 August 1973, his intermediate commander recommended approval of
his discharge request.

10.  On 25 August 1973, the appropriate separation authority approved the
applicant's discharge request, and directed his reduction to Private E-1,
and the issuances of an undesirable discharge.

11.  On 30 August 1973, the applicant was discharged under the provisions
of Army Regulation 635-200, Chapter 10, for the good of the service in lieu
of trial by court-martial.  His DD Form 214 (Armed Forces of the United
States Report of Transfer or Discharge) indicates he had 1 year, 10 months,
and 8 days of creditable service and 1389 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 under other than honorable conditions
discharge.




13.  On 2 September 1980 the Army Discharge Review Board denied the
applicant's petition to upgrade his discharge.

14.  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 voluntarily requested separation under Army Regulation
635-200, Chapter 10, for the good of the service, to avoid a trial by court-
martial.

2.  The applicant’s administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
error which would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

4.  The is no evidence in the available records nor did the applicant
provide documentation to substantiate his claim that PTSD was the cause of
his excessive AWOL time.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 2 September 1980.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 1 September 1983.  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

__PS ___  ___LD  __  __RG___  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.




                                  _______Paul Smith_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016830                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060829                                |
|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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