RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 SEPTEMBER 2006
      DOCKET NUMBER:  AR20050017709


      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. William Crain                 |     |Chairperson          |
|     |Mr. Jeffrey Redmann               |     |Member               |
|     |Mr. David Tucker                  |     |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 to general.

2.  The applicant states that he was young and got involved with drugs
while in Vietnam.  He served for 3 years and had a good record.  He is now
older and wiser, and would like his discharge upgraded.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
5 January 1972.  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 enlisted in the Regular Army on 30 July 1968, at 18 years
of age, for a period of 3 years.  He served in Vietnam from 1 February 1969
to
14 July 1969.

4.  On 27 January 1971, the applicant was convicted by a summary court-
martial of two specifications of being absent without leave (AWOL) from 31
May 1970 to 9 July 1970, and from 24 August 1970 to 13 October 1970.  He
was sentenced to hard labor, without confinement, for 45 days and reduction
to pay grade E-3.

5.  On 2 April 1971, the applicant accepted nonjudicial punishment (NJP)
under the provisions of Article 15, Uniform Code of Military Justice
(UCMJ), for being AWOL from 8 March 1971 to 23 March 1971.  His punishment
was reduction to pay grade E-2, a forfeiture of pay and extra duty.

6.  On 28 April 1971, the applicant accepted NJP under the provisions of
Article 15, UCMJ, for failure to go at the time prescribed to his place of
duty.  His punishment was extra duty and restriction.

7.  On 6 December 1971, his commander preferred court-martial charges
against him for being AWOL from 28 June 1971 to 1 December 1971.

8.  On 13 December 1971, after consulting with legal counsel, the applicant
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 he understood the effects of receiving a
characterized of service of under other than honorable conditions (UOTHC);
that he may encounter substantial prejudice in civilian life, and may be
ineligible for many or all benefits as a veteran under both Federal and
State laws.

9.  On 16 December 1971, the applicant's company commander recommended
approval of the applicant's discharge request with the issuance of an
undesirable discharge.

10.  On 17 December 1971, the applicant’s intermediate commander concurred
with the unit commander and recommended approval of the applicant’s request
and recommended the issuance of an undesirable discharge.

11.  On 28 December 1971, the appropriate separation authority approved the
applicant’s discharge request and directed the issuance of an undesirable
discharge.

12.  On 5 January 1972, the applicant was discharged under the provisions
of Army Regulation 635-200, Chapter 10, for the good of service in lieu of
trial by court-martial.  His DD Form 214 indicates he had 3 years, I month
and 1 day of active service and 125 days of lost time.

13.  The applicant's DA Form 20 (Enlisted Qualification Record) indicates
the applicant had excellent conduct and efficiency rating for his first
year of service, however, the majority of his conduct and efficiency rating
for his last two years of service was shown as unsatisfactory.

14.  On 9 October 1985, the Army Discharge Review Board denied the
applicant's petition to upgrade his discharge.



15.  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, characterized as
under other than honorable conditions.

16.  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 applicant's contention that he was young at the time is not
sufficiently mitigating to warrant the relief requested.  The Board notes
that the applicant was 20 years of age at the time of his first AWOL
offense.

4.  The applicant's contention that he had a good record, is not supported
by evidence of records.  The majority of the applicant's conduct and
efficiency ratings during his last two years of service is shown as
unsatisfactory.

5.  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.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 9 October 1985.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 8 October 1988.  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

__WC___  ___JR___  __DT ___  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.




                                  ______William Crain_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050017709                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060921                                |
|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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