RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            15 JUNE 2006
      DOCKET NUMBER:   AR20050015439


      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. John Meixell                  |     |Chairperson          |
|     |Mr. Jeffrey Parsons               |     |Member               |
|     |Mr. Jeanette McPherson            |     |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 a
more favorable discharge.

2.  The applicant states that he found it very difficult to adapt to
military life and he was young and unaware of the consequences of his
actions at the time.  He further states that he has not been in any trouble
since his discharge.

3.  The applicant provides a copy of his report of separation, his
enlistment contract and a copy of his enlisted qualification record (DA
Form 20).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the Board favorably consider the
applicant’s request.

2.  Counsel states, in effect, that he is assured that the Board’s final
decision will reflect sound equitable principles consistent with the
applicable laws and regulations.

3.  Counsel provides no additional documents with the request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 31 December 1974.  The application submitted in this case is
dated 21 October 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 was born on 29 August 1954 and enlisted in Richmond, Virginia on
19 September 1973 for a period of 3 years, training as a metal worker and
assignment to Fort Eustis, Virginia.  He completed his basic combat
training at Fort Knox, Kentucky, and was transferred to Fort Eustis for on
the job training as a metal working apprentice.

4.  On 22 July 1974, non-judicial punishment (NJP) was imposed against him
for absent without leave (AWOL) from 10 July to 16 July 1974.  His
punishment consisted of a reduction to the pay grade of E-1, extra duty and
restriction.

5.  On 9 August 1974, NJP was imposed against him for being absent from his
place of duty.  His punishment consisted of a forfeiture of pay and extra
duty.

6.  On 21 October 1974, NJP was imposed against him for two specifications
of failure to go to his place of duty.  His punishment consisted of a
forfeiture of pay.

7.  On 30 October 1974, NJP was imposed against him for failure to go to
his place of duty.  His punishment consisted of a forfeiture of pay, extra
duty and restriction.

8.  On 4 December 1974, charges were preferred against the applicant for
six specifications of failure to go to his place of duty and for being AWOL
from 31 October to 2 December 1974.

9.  On 6 December 1974, 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 in his own behalf whereas he asserted that he joined the Army to
try it out and get a job to help his family.  However, he was not working
in his military occupational specialty and was always on details or doing
nothing jobs.  He went on to state that he was not getting anything out of
his job and he could not please his superiors.  He also stated that he made
a mistake by joining the Army and that he desired a general discharge.

10.  He underwent a mental status evaluation and was deemed mentally
responsible.  He was cleared for an administrative action deemed
appropriate by the chain of command.

11.  The applicant’s chain of command indicated that the applicant was a
rehabilitative transfer and his conduct and performance were unacceptable.
His chain of command recommended that he be issued an Undesirable Discharge
Certificate.

12.  The appropriate authority (a major general) approved the request on
27 December 1974 and directed that he be discharged under other than
honorable conditions and furnished an Undesirable Discharge Certificate.
Accordingly, he was discharged under other than honorable conditions on
31 December 1974, under the provisions of Army Regulation 635-200, chapter
10, in lieu of trial by court-martial.  He had served 1 years and 2 days of
total active service and had 42 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.  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.
 A discharge under other than honorable conditions 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 have been noted by the Board; however, they
are not sufficiently mitigating to warrant relief when compared to his
overall record of undistinguished service and repeated misconduct.  His
service simply does not rise to the level of a discharge under honorable
conditions.

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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 December 1974; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 30 December 1977.  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

___JM__  ___JP ___  ____JM__  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.


                                  _____John Meixell___________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050015439                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060615                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1974/12/31                              |
|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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