RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 September, 2006
      DOCKET NUMBER:  AR20050017299


      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:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Ms. Maribeth Love                 |     |Member               |
|     |Mr. Thomas M. Ray                 |     |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.

2.  The applicant states, in effect, that it has been 35 years since being
discharged.  He regrets his action, he was immature and he was not ready
for military service.  He would like to be a part of veteran activities.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 1 October 1970, the date he was separated from
active duty.  The application submitted in this case is dated 6 December
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 was inducted into the Army of the
United States on 18 May 1970, for a period of 2 years.  On 28 May 1970,
while in Basic Combat Training (BCT), the applicant was reported for being
absent without leave (AWOL).  He was returned to military control on 18
July 1970.

4.  On 21 July 1970, court-martial charges were preferred against the
applicant for being AWOL from 28 May to 17 July 1970.

5.  On 30 July 1970, 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.  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).  He further indicated that he
understood that he could encounter substantial prejudice in civilian life
by reason of an undesirable discharge.  The applicant did not submit a
statement with his request.

6.  On 21 September 1970, the separation authority approved the applicant’s
request for discharge and directed that he receive an Undesirable Discharge
Certificate.  On 1 October 1970, the applicant was discharged accordingly.
The discharge document (DD Form 214) he was issued confirms he completed a
total of 2 months and 23 days of creditable active military service.

7.  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. However, at the time of the applicant's separation the
regulation provided for the issuance of an Undesirable Discharge
Certificate.

8.  There is no indication that the applicant applied to the Army Discharge
Review Board of an upgrade of his discharge within its 15-year statute of
limitations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because he
was young and made some big mistakes were carefully considered and found to
be insufficient in merit in supporting his request.  The applicant’s record
shows that he was 20 years of age at the time of the offense.  There is no
evidence that indicates that he was any less mature than any other Soldier
of the same age who successfully completed military service.  Therefore,
given the circumstances in this case and his overall record of service,
there is insufficient evidence to support his claim.

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 service.

3.  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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 October 1970; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
30 September 1973.  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

__JEA___  __ML ___  __TMR__  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.




                                        James E. Anderholm____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/09/19                              |
|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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