RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         18 July 2006
      DOCKET NUMBER:  AR20050017055


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Ms. Ernestine R. Fields           |     |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 under other than honorable
conditions discharge (UOTHC) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he served honorably and was not
allowed to complete the 2 years of active duty service he requested before
his active duty began.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 13 April 1977.  The application submitted in this case is
dated
18 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 that he enlisted in the Regular Army and
entered active duty on 2 February 1976.  He was trained in, awarded, and
served in military occupational specialty (MOS) 11C (Infantry Indirect Fire
Crewman), and the highest rank he attained while he was serving on active
duty was private (PV2)/E-2.

4.  The applicant's record documents no acts of valor, significant
achievement, or service warranting special recognition.  His disciplinary
record includes his acceptance of non-judicial punishment (NJP) under the
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on
10 December 1976, for being absent without leave (AWOL) from 22 October
through 21 November 1976.  His punishment for this offense was a reduction
to private (PV1)/E-1 and a forfeiture of $60.00.

5.  On 4 January 1977, the applicant departed AWOL.  He remained away for
69 days until being apprehended by civil authorities and returned to
military control on 13 March 1977.

6.  The applicant's Military Personnel Records Jacket (MPRJ) does not
include a separation packet containing the specific facts and circumstances
surrounding his separation processing.  The record does contain a properly
constituted separation document (DD Form 214) that confirms he received an
UOTHC on
13 April 1977, and that identifies the authority and reason for his
separation.

7.  The DD Form 214 issued to the applicant at the time of his separation
confirms he was separated under the provisions of chapter 10, Army
Regulation 635-200, for the good of the service, in lieu of trial by court-
martial.  It also shows he completed a total of 11 months and 2 days of
creditable active military service, and that he accrued a total of 100 days
of time lost due to AWOL.

8.  There is no indication that the applicant applied to the Army Discharge
Review Board (ADRB) for an upgrade of his discharge within the ADRB’s 15-
year statute of limitations.

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.  A
discharge under other than honorable conditions is normally considered
appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge was unjust was carefully
considered.  However, there is insufficient evidence to support this claim.


2.  The applicant's record is void of a separation packet containing the
specific facts and circumstances surrounding his discharge processing.
However, it does include a properly constituted DD Form 214 that identifies
the reason and characterization of his discharge.  Therefore, Government
regularity in the discharge process is presumed.

3.  The applicant’s separation document confirms he was discharged under
the provisions of chapter 10, Army Regulation 635-200, for the good of the
service, in lieu of trial by court-martial.  In connection with such a
discharge, he was charged with the commission of an offense punishable with
a punitive discharge under the UCMJ.  Procedurally, he was required to
consult with defense counsel, and to voluntarily request separation from
the Army in lieu of trial by court-martial.  In doing so, he would have
admitted guilt to the stipulated offense(s) under the UCMJ that authorized
the imposition of a punitive discharge.  In the absence of information to
the contrary, it is concluded that all requirements of law and regulation
were met, and that his rights were fully protected throughout the
separation process.

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 should have discovered the alleged error or
injustice now under consideration on 13 April 1977.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 12 April 1980.  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
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___LE  __  __PHM__  __ERF __  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.




                                  _____Lester Echols_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050017055                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/07/18                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1977/04/13                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |In Lieu of C-M                          |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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