RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            18 JULY 2006
      DOCKET NUMBER:   AR20050017701


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. Patrick McGann                |     |Member               |
|     |Ms. Ernestine 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 that his undesirable discharge be upgraded to
honorable.

2.  The applicant states that he was ordered to active duty after having
served    5 1/2 years of Enlisted Reserve duty because of missed meetings
for medical reasons and was given an undesirable discharge for being absent
without leave (AWOL) for 11 months.  He further states that he presented
all of the medical papers from doctors to verify that he was unable to
attend meetings or work because of injuries and they were ignored.  He also
states that he deserves the benefits of a veteran and to be given an
honorable discharge so he can claim benefits.

3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 26 March 1973.  The application submitted in this case is dated
28 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.  He enlisted in the United States Army Reserve (USAR) in Rochester, New
York on 11 May 1967 for a period of 6 years.  He was ordered to initial
active duty for training (IADT) at Fort Dix, New Jersey on 17 June 1967.

4.  On 22 September 1967, nonjudicial punishment was imposed against him
for being AWOL from 15 September to 18 September 1967.  His punishment
consisted of a forfeiture of pay, extra duty, and restriction.

5.  He completed his IADT and was honorably released from IADT on 18
October 1967 and was returned to his unit.

6.  During the period of November 1970 through May 1971, the applicant’s
commander dispatched notices of unexcused absences through Certified Mail
to the applicant informing him of the requirement to attend scheduled
drills and to provide documentation to the unit in a timely manner in order
that the absences may be excused, if appropriate.  As of May 1971, he had
eight unexcused absences.

7.  On 10 May 1971, the applicant’s commander submitted a request for
active duty orders which required the applicant to serve 1 year, 6 months,
and 13 days of active service due to his unsatisfactory participation.

6.  On 2 June 1971, the applicant was notified that he could expect orders
within 30 days and that he had the right to appeal the action within 15
days of receipt of the notification.  The applicant submitted an appeal of
the action contending that he had provided sufficient documentation to
substantiate an excused absence for those he had missed.

7.  On 18 September 1971, a Delay Appeal Board convened to review and make
a recommendation on the applicant’s appeal.  The board found that the
documents he submitted with his appeal failed to qualify the applicant for
mitigation or relief from his involuntary call to active duty.  The board
also found that his explanation of his absences was unsupported and
unacceptable grounds for favorable consideration and denied his appeal on
15 October 1971.

8.  The applicant was ordered to active duty with instructions to report to
the Overseas Replacement Detachment at Fort Dix, New Jersey on 1 November
1971.  He did not report as ordered and was reported as being absent
without leave (AWOL) on 2 November 1971.  He remained absent in a deserter
status until he was returned to military control at Fort Dix on 16 December
1971.  The record is silent as to any punishment imposed for that offense.

9.  The applicant was transferred to Germany on 6 January 1972 and on
20 March 1972, he was reported as being AWOL.  He remained absent in a
deserter status until he was returned to military control at Fort Dix on 5
February 1973 and charges were preferred against him for the AWOL charge.

10.  On 15 February 1973, after consulting with counsel, the applicant
submitted a request for discharge for the good of the service in lieu of
trial by court-martial.  In his request he stated that he understood that
he may be discharged with an undesirable discharge, that he understood the
prejudice he may be subjected to

as a result of such a discharge, that he understood that he would be
deprived of many or all benefits and that he was not subjected to coercion
by anyone to submit such a request.  He also elected not to submit a
statement in his own behalf.

11.  The appropriate authority (a major general) approved his request on 7
March 1973 and directed that he be furnished an Undesirable Discharge
Certificate.

12.  Accordingly, he was discharged under other than honorable conditions
on
26 March 1973, under the provisions of Army Regulation 635-200, chapter 10,
for the good of the service in lieu of trial by court-martial.  He had
served 4 months and 25 days of active service and had 367 days of lost time
due to AWOL.

13.  There is no evidence in the available records to show that he ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that board’s 15-year statute of limitations.

14.  The applicant’s records show that he underwent a medical/physical
examination at the time of his separation and he indicated that he was in
good health.  He was deemed qualified for separation.

15.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge
for the good of the service in lieu of trial by court-martial.  A condition
of submitting such a request is that the individual concerned must indicate
that they are submitting the request of their own free will, without
coercion from anyone and that they have been briefed and understand the
consequences of such a request as well as the discharge they might receive.
 A discharge under other than honorable conditions is normally considered
appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, for the good of the service to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.  There were no violations of any
of the applicant’s rights.


2.  After being afforded the opportunity to assert his innocence before a
trial by court-martial, he voluntarily requested a discharge for the good
of the service in hopes of avoiding a punitive discharge and having a
felony conviction on his records.

3. The applicant’s contentions have been noted and found to be without
merit.  Additionally, they are not sufficiently mitigating to warrant
relief when compared to his undistinguished record of service and the
extensive length of his absences. His service simply does not rise to the
level of a discharge under honorable conditions.

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 26 March 1973; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
25 March 1976.  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

___LE __  ___PM __  ___EF___  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 Fields_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050017701                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060718                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1973/03/26                              |
|DISCHARGE AUTHORITY     |AR20050017701 . . . . .                 |
|DISCHARGE REASON        |Conv of Gov’t                           |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES         1.       |                                        |
|144.700/689/a70.00      |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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