RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         19 July 2006
      DOCKET NUMBER:  AR20050017626


      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. James E. Vick                 |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Donald L. Lewy                |     |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)
be upgraded.

2.  The applicant states, in effect, that he thought an upgrade had been
done in accordance with the standards at the time.

3.  The applicant provides no 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 30 January 1969, the date of his discharge.  The
application submitted in this case is dated 5 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 enlisted in the Regular Army and
entered active duty on 14 July 1965.  He was trained in and awarded
military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewman),
and the highest rank he attained while serving on active duty was private
first class (PFC).

4.  The applicant's record shows that during his active duty tenure, he
earned the National Defense Service Medal and Parachutist Badge.  The
record documents no acts of valor, significant achievement, or service
warranting special recognition.  There is no record of combat service in
the Republic of Vietnam.

5.  The applicant's disciplinary history includes a conviction by special
court-martial (SPCM) on two separate occasions, and a conviction by a
general court-martial.  It also includes his acceptance of non-judicial
punishment (NJP) under the provisions of Article 15 of the Uniform Code of
Military Justice (UCMJ) on seven separate occasions.

6.  On 16 December 1966, a SPCM found the applicant guilty of being absent
without leave (AWOL) from on or about 5 through on or about 6 November
1966; and from on or about 2 through on or about 5 December 1966.  His
sentence was confinement at hard labor for 1 month (suspended), forfeiture
of $59.00, and reduction to private/E-1 (PV1).

7.  On 3 April 1967, a SPCM found the applicant guilty of being AWOL from
on or about 25 February through on or about 14 March 1967.  His sentence
was confinement at hard labor for 3 months and forfeiture of $35.00 per
month for
3 months.

8.  On 22 August 1967, a GCM found the applicant guilty of being AWOL from
on or about 21 April through on or about 28 May 1967 and from on or about
30 May through on or about 31 May 1967; and for escaping from lawful
confinement on 30 May 1967.  His sentence was confinement at hard labor for
12 months and forfeiture of $37.00 per month for 12 months.

9.  The applicant accepted NJP on the following dates for the offenses
indicated: 15 August 1965, for disobeying a lawful order; 16 December 1965,
for being disrespectful to a commissioned officer; 17 December 1965, for
disobeying a lawful order; 19 January 1966, for being AWOL from 16 through
17 January 1966; 21 May 1966, for being AWOL from 16 through 20 May 1966; 4
June 1966, for being absent from his appointed place of duty; and 28
September 1966, for failing to repair for formation and for being derelict
in the performance of his duty.

10.  The available evidence does not include a separation packet containing
the specific facts and circumstances surrounding the applicant’s separation
processing.  The record does contain a properly constituted DD Form 214
that confirms the applicant received an UD on 30 January 1969, and that
identifies the authority and reason for his separation.  The DD Form 214 he
was issued at the time 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 2 years, 6 months,
and
19 days of creditable active military service, and that he accrued a total
of
97 days of time lost due to AWOL and confinement.

11.  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.

12.  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 he thought his discharge was already
upgraded was carefully considered.  However, there is insufficient evidence
to support this claim.  The Army has never had a policy to automatically
upgrade discharges.  A discharge can be upgraded by either the ADRB, or
this Board, if the discharge is found to be improper or inequitable.  No
such findings are evident in this case.

2.  The available evidence does not include a separation packet containing
the specific facts and circumstances surrounding the applicant’s final
discharge processing.  However, it does include a properly constituted DD
Form 214 that identifies the reason and characterization of the applicant’s
final 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.

4.  In the absence of information to the contrary, it is concluded that all
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout the separation process.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 January 1969.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 29 January 1972.  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

___JEV  _  __BJE __  ___DLL _  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. Vick_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050017626                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/07/19                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1969/01/30                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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