RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20060727
      DOCKET NUMBER:  AR20050016948


      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.  Joyce A. Wright              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. Edward E. 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, in effect, that his undesirable discharge (UD)
which was upgraded to general under the Special Discharge Review Program
(SDRP), be upgraded to honorable.

2.  The applicant states, in effect, that he was 21 years old and did not
take responsibility well and that he was unaware of the importance of his
discharge.  He also states that he was not old enough to make a decision
concerning his discharge.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation
From Active Duty) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 2 June 1971, the date of his discharge.  The application
submitted in this case is dated 14 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.  At the age of 18 years, 3 months, and 5 days, the applicant entered
active duty (AD) on 16 April 1969, as a personnel specialist (71H).  He was
advanced to E-4 effective 30 April 1970.  He served in Alaska from
5 September 1969 to 4 March 1971.

4.  Item 32, of his DA Form 20 (Enlisted Qualification Record), shows he
completed 8 years of high school in 1968.






5.  Between 16 July 1969 and 19 October 1970, he received nonjudicial
punishment (NJP) on four occasions under Article 15, Uniform Code of
Military Justice (UCMJ), for being absent without leave (AWOL) from 8 to
13 July 1969, for misappropriation of government property, for being absent
from his appointed place of duty on two occasions, for failure to go to his
appointed place of duty, for failure to obey a lawful regulation, and for
failure to obey a lawful order.  His punishments consisted of a reduction
to pay grade E-3 and E-2, forfeitures of pay, restriction, and extra duty.

6.  Charges were preferred against the applicant on 5 May 1971, for being
AWOL from 23 January 1971 to 13 April 1971.

7.  On 19 April 1971, he consulted with counsel and voluntarily requested
discharge, for the good of the service, in lieu of trial by court-martial,
under the provisions of Army Regulation 635-200, chapter 10.  In doing so,
he acknowledged that he might encounter substantial prejudice in civilian
life and might be ineligible for many or all benefits administered by the
Veterans Administration (VA) if a UD were issued.  He waived his rights and
elected to submit a statement in his own behalf.  However, his statement is
unavailable for review.

8.  On 26 May 1971, the separation authority approved the applicant's
request for discharge and directed that he be furnished a UD and that he be
reduced to the lowest enlisted grade. 

9.  The applicant was discharged in the rank/pay grade, Private/E-1, on
2 June 1971.  He had a total of 1 year, 10 months, and 23 days of net
active service and 86 days of lost time due to AWOL.  He was 20 years,
4 months, and 21 days old at the time of his discharge.

10.  The applicant's DD Form 214 shows no awards and his highest education
level successfully completed as "8 years."

11.  On 15 October 1973, the Army Discharge Review Board denied the
applicant's petition to upgrade his discharge.

12.  The applicant reapplied to the ADRB on 28 August 1974, for an upgrade
of his discharge.  The ADRB determined that the applicant was properly
discharged and denied his request on 8 October 1974.


13.  The applicant reapplied to the ADRB for an upgrade of his discharge
under the Department of Defense (DOD) Special Discharge Review Program
(SDRP) on 27 July 1976.  The ADRB noted that the applicant met the
secondary criteria of education level at the time of his discharge and
acknowledged his record of good citizenship since his discharge.

14.  The ADRB indicated that the applicant's record of service was not
sufficiently meritorious to warrant an honorable discharge notwithstanding
the fact that the applicant met one or more of the primary criteria and
or/secondary criteria.  The ADRB upgraded his discharge to general (under
honorable conditions), under the provisions of the SDRP, on 20 June 1977.

15.  The letter from the Office of the Adjutant General, Washington, DC,
dated 21 July 1978, informed the applicant that the previous upgrading of
his discharge was re-reviewed by the ADRB as required by Public Law 95-126.
 Upon review, the ADRB determined that the applicant’s discharge did not
qualify for upgrading under the new uniform standards for discharge
reviews.  Accordingly, the applicant’s upgraded discharge under the DOD
SDRP was not affirmed.

16.  Army Regulation 635-200 sets forth the basic authority for 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.  A discharge under other than honorable
conditions is normally considered appropriate.  However, at the time of the
applicant’s separation the regulation provided for the issuance of an
undesirable
discharge.

17.  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.






18.  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.

19.  The SDRP, often referred to as the "Carter Program," was announced on
29 March 1977.  The program mandated upgrade of administrative discharges
if the applicant met one of seven specified criteria to include various
aspects of service in Vietnam.  Reasons for granting an upgrade under
secondary criteria include age, aptitude, education level, alcohol/drug
problem, record of citizenship, etc.

20.  Public Law 95-126, enacted on 8 October 1977, provided generally, that
no
VA benefits could be granted based on any discharge upgraded under the Ford
memorandum of 19 January 1977, or the DOD SDRP.  It required the
establishment of uniform published standards, which did not provide for
automatically granting or denying a discharge upgrade for any case or class
of cases.  The services were then required to individually compare each
discharge previously upgraded under one of the special discharge review
programs to the uniform standards and to affirm only those cases where the
case met those standards.

21.  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 evidence of record shows the applicant requested and was discharged
under the provisions of Chapter 10, AR 635-200, for the good of the service
in lieu of trial by court-martial.  There is no indication that the request
was made under coercion or duress.
2.  The applicant’s administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

3.  The applicant alleges that he was unaware of the importance of his
discharge and that he was not old enough to make that decision.  The
evidence clearly shows that he consulted with counsel and was advised of
the importance of his discharge when he voluntarily requested discharge to
avoid trial by court-martial. It is also noted that he was over the age of
18 when he entered an all volunteer Army and was considered old enough to
make sound decisions on his own.

4.  The applicant contends that he was 21 years old and did not take
responsibility well; however, the evidence clearly shows that he was
18 years, 3 months, and 5 days of age on the date of his entry on AD and
20 years, 4 months, and 21 days old on the date of his discharge.  There is
no evidence that the applicant was any less mature than other Soldiers of
the same or of a younger age who served successfully and completed their
term of service.

5.  The applicant’s discharge was upgraded to general (under honorable
conditions) under the SDRP on 20 June 1977.  However, this upgrade was not
affirmed under the provisions of discharge review standards established by
the Department of the Army in accordance with Public Law 95-126.

6.  The evidence of record clearly shows that it has been approximately
29 years since he applied to the ADRB under the DOD SDRP for an upgrade of
his UD.    It is noted that there is no evidence to show that he reapplied
to the ADRB for further upgrade of his GD (under honorable conditions)
within its 15-year statute of limitations.

7.  There is no evidence in the applicant's records, and the applicant has
provided no evidence, to show that his discharge was unjust.  He also has
not provided evidence sufficient to mitigate the character of his
discharge.

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




9.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 20 June 1977.  As
a result, the time for the applicant to file a request for correction or
any error or injustice to this Board expired on 19 June 1980.  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

___EM __  ___JCR__  __J_____  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 T. Meixell___________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016948                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060727                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19710602                                |
|DISCHARGE AUTHORITY     |AR 635-200, chapter 10                  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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