RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 SEPTEMBER 2006
      DOCKET NUMBER:  AR20050017365


      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. James Anderholm               |     |Chairperson          |
|     |Ms. Maribeth Love                 |     |Member               |
|     |Mr. Thomas 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 that his records be corrected by upgrading his
discharge.

2.  The applicant states that his last review date was before March 31,
1978 and he is entitled to a new review.

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
1 May 1972.  The application submitted in this case is undated, but was
received on 7 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 enlisted in the Regular Army on 20 January 1970, for a
period of 3 years.  He successfully completed basic combat training at Fort
Lewis, Washington, and advanced individual training at Fort Sill, Oklahoma.
 The applicant served in the Canal Zone from 17 November 1970 to 29 May
1971 and in Vietnam from 1 August 1971 to 22 April 1972.

4.  On 10 May 1970, while on authorized leave in Lawton, Oklahoma, the
applicant was arrested by civil authorities and charged with burglary.  On
3 June 1970, he was convicted and received 2 years suspended sentence.  He
was confined from 10 May 1970 to 2 June 1970.

5.  On 13 July 1971, he accepted nonjudicial punishment (NJP) under the
provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being
absent without leave (AWOL) from 5 July 1971 to 12 July 1971.  His
punishment was a forfeiture of pay, suspended for 30 days.

6.  On 5 November 1971, he accepted NJP under the provisions of Article 15,
UCMJ, for being AWOL from 17 October 1971 to 30 October 1971.  His
punishment was reduction to pay grade E-2 and a forfeiture of pay for 2
months.

7.  On 25 January 1972, he was convicted by a summary court-martial for
being AWOL from 5 December 1971 to 16 January 1972, and from 17 January
1972 to 22 January 1972.  He was sentenced to confinement at hard labor for
1 month, reduction to Private E-1, and forfeiture of $150.00 per month for
1 month.

8.  All of the facts and circumstance concerning the applicant's discharge
proceedings are not in the available records.  However, there is
documentation that the applicant, after consulting with legal counsel,
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 with no coercion whatsoever by any person.  He acknowledged that
he understood the effects of receiving an under other than honorable
conditions characterization.  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.  The charge sheet is not in the
available records.

9.  On 13 April 1972, his unit and intermediate commanders recommended
approval of his discharge request with the issuance of an undesirable
discharge.

10.  The appropriate separation authority approved the applicant's
discharge request and directed his reduction to the lowest enlisted grade
and the issuance of an undesirable discharge.

11.  On 1 May 1972, 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 2 years and 1 day of
creditable service and 91 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, under other than honorable conditions.

13.  On 5 December 1977 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.  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.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 5 December 1977.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 4 December 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

___JA___  ___ML __  __TR ___  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 Anderholm_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050017365                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060919                                |
|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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