RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            25 APRIL 2006
      DOCKET NUMBER:   AR20050012322


      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:

|     |Ms. Jennifer Prater               |     |Chairperson          |
|     |Mr. Peter Fisher                  |     |Member               |
|     |Mr. Ronald Gant                   |     |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 an
honorable discharge.

2.  The applicant states that his mother was terminally ill, his wife had
an abortion that he did not know about, and his father was diagnosed with
kidney failure.  He goes on to state that his discharge was wrongful under
the circumstances, that he deserves an upgrade of his discharge, and that
he cannot do any labor due to his health problems.

3.  The applicant provides a third party character reference with his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 5 September 1975.  The application submitted in this case was
received on 9 August 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 Charlotte, North Carolina, on 21 October 1974 for a
period of 3 years, training as a mechanical maintenance helper, and
assignment to Fort Bragg, North Carolina.

4.  He completed his training and was transferred to the 416th Signal
Company at Fort Bragg for on-the-job training.  He was advanced to the pay
grade of E-2 on 21 February 1975.

5.  He went absent without leave (AWOL) on 24 May 1975 and remained absent
until he surrendered to military authorities at Fort Bragg on 30 June 1975,
where charges were preferred against him for the AWOL offense.

6.  On 24 July 1975, after consulting with defense counsel, the applicant
submitted a request for discharge for the good of the service, under the
provisions of Army Regulation 635-200, chapter 10, in lieu of trial by
court-martial.  In his request he indicated that he understood the charges
that had been preferred against him, that he was making the request of his
own free will, without coercion from anyone, and that he was aware of the
implications attached to his request.  He also admitted that he was guilty
of the charges against him or of lesser included offenses which authorized
the imposition of a bad conduct or dishonorable discharge.  He acknowledged
that he understood that he could receive a discharge under other than
honorable conditions and that he might be deprived of all benefits as a
result of such a discharge.  He further elected to submit a statement or
explanation in his own behalf, whereas he asserted that it would be in the
best interest of the Army and himself to be discharged because he could not
get use to military life.

7.  The appropriate authority approved his request on 2 September 1975 and
directed that he be issued an Undesirable Discharge Certificate.

8.  Accordingly, he was discharged with an undesirable discharge,
characterized as under other than honorable conditions, on 5 September
1975, under the provisions of Army Regulation 635-200, chapter 10, in lieu
of trial by court-martial.  He had served 9 months and 12 days of total
active service and had
36 days of lost time due to AWOL and 6 days of excess leave.

9.  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.

10.  The third-party statements submitted by the applicant serve to show
that he has become a wonderful father and husband despite the stress he had
undergone over the years.

11.  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 admit
guilt to the charges against them or of a lesser included offense which
authorizes the imposition of a bad conduct or dishonorable discharge and
they must indicate that they have been briefed and understand the
consequences of such a request as well as the discharge they might receive.
 An undesirable discharge is normally considered appropriate.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions and supporting documents have been noted;
however, they are not sufficiently mitigating to warrant relief when
compared to his overall record of undistinguished service during such a
short period of time.

4.  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.  In doing so he admitted guilt to the
charges against him and at the same time made no mention of any problems or
mitigating circumstances he was experiencing at the time.  He simply stated
that he could not adjust to Army life.

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 5 September 1975; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 4 September 1978.  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

____JP__  __PF ___  ___RG __  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.




                                  ______Jennifer Prater_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050012322                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060425                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1975/09/05                              |
|DISCHARGE AUTHORITY     |AR635-200/CH10 . . . . .                |
|DISCHARGE REASON        |GD OF SVC                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |689/A70.00                              |
|1.144.7000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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