RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            22 JUNE 2006
      DOCKET NUMBER:   AR20050016051


      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. James Gunlicks                |     |Chairperson          |
|     |Mr. Larry Olson                   |     |Member               |
|     |Ms. Peguine Taylor                |     |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, in effect, that the Army breached his contract
from the years of 1968 through 1972 and that his discharge should be
upgraded because he was told that after 6 months it would be upgraded
automatically.

3.  The applicant provides copies of his reports of separation (DD Form
214).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 6 April 1972.  The application submitted in this case is dated
26 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 enlisted in St. Louis, Missouri, on 8 October 1968 for a period of 2
years.  He completed his basic combat training at Fort Leonard Wood,
Missouri, and was transferred to Fort Sam Houston for his advanced
individual training (AIT) as a medic.  He did not complete that training
and was transferred back to Fort Leonard Wood for AIT as a cook.  He
completed that training and was transferred to Germany on 24 July 1969.  He
was advanced to the pay grade of E-4 on 7 February 1970.

4.  On 6 March 1970, he was honorably discharged for the purpose of
immediate reenlistment.  He reenlisted on 7 March 1970 for a period of 4
years and training as an electronic instrument repairman.

5.  On 11 July 1970, nonjudicial punishment (NJP) was imposed against him
for being disrespectful in language towards a superior noncommissioned
officer.  His punishment consisted of a forfeiture of pay and extra duty.

6.  On 25 November 1970, NJP was imposed against him for being
disrespectful in language towards a superior noncommissioned officer (NCO)
and for communicating a threat to a superior NCO.  His punishment consisted
of a reduction to the pay grade of E-2 (suspended for 60 days), a
forfeiture of pay, extra duty and restriction.

7.  He departed Germany on 24 July 1969 and was transferred to Fort Gordon,
Georgia to attend his service school that he contracted for during his
reenlistment.  He arrived at Fort Gordon on 27 April 1971 and on 3 May
1971, he waived his reenlistment option to attend the service school and
was assigned to Fort Gordon for duty as a cook.

8.  On 10 June 1971, NJP was imposed against the applicant for being absent
without leave (AWOL) from 30 May to 4 June 1971.  His punishment consisted
of a reduction to the pay grade of E-3.

9.  On 29 July 1971, 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.

10.  On 20 August 1971, NJP was imposed against him for the unlawful
possession of three knives with blades more than two and one-half inches
long.  His punishment consisted of a forfeiture of pay, reduction to the
pay grade of E-2, extra duty and restriction.

11.  On 20 August 1971, the commander also initiated action to bar the
applicant from reenlistment based on his disciplinary record and his
substandard performance.  The applicant elected not to submit a statement
in his own behalf and the appropriate authority approved the bar to
reenlistment on 8 October 1971.

12.  On 26 August 1971, NJP was imposed against the applicant for
disobeying a lawful order from a superior commissioned officer to perform
his extra duty.  His punishment consisted of a forfeiture of pay, extra
duty and restriction.

13.  The applicant went AWOL on 3 September 1971 and remained absent in
desertion until he was apprehended by civil authorities on 15 March 1972
and was returned to military control at Fort Leonard Wood, where charges
were preferred against him for the AWOL offense.

14.  After consulting with counsel, the applicant submitted a request for
discharge for the good of the service in lieu of trial by court-martial,
under the provisions of Army Regulation 635-200, chapter 10.

15.  The appropriate authority (a major general) approved his request on 31
March 1972 and directed that he be furnished an Undesirable Discharge
Certificate.

16.  Accordingly, he was discharged under other than honorable conditions
on 6 April 1972, under the provisions of Army Regulation 635-200, chapter
10, in lieu of trial by court-martial.  He had served 1 year, 6 months and
12 days of active service during his current enlistment with a total of 200
days of lost time.  He had served a total of 2 years, 11 months and 29 days
of total active service.

17.  He applied to the Army Discharge Review Board (ADRB) for an upgrade of
his discharge on 20 January 1980.  He asserted at that time that he needed
an upgrade of his discharge to get a good paying job to support his family.
 He also asserted that he received NJP in Germany because his sergeant was
prejudiced. He also asserted that he had been tricked into waiving his
service school option and that his mess sergeant was riding his back.  He
went AWOL because he could not get leave to go and see his mother, who was
ill at the time, and he remained in Missouri until he was arrested by
Federal Bureau of Investigations (FBI) officials.  The ADRB determined that
his discharge was both proper and equitable under the circumstances and
denied his request on 15 April 1982.

18.  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 was then and still is
normally considered appropriate.  Additionally, there have never been any
provisions for an automatic upgrade of such discharges.

19.  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'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.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate under the circumstances.

3.  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.

4.  The applicant's contentions that the Army breached his enlistment
contract and that he was assured that his discharge would be upgraded after
6 months has been noted; however, they are not supported by the evidence
submitted with his application and the evidence of record.   Accordingly,
his overall record of service has been considered and it has been
determined that his contentions are not sufficiently mitigating to warrant
relief when compared to his extensive unauthorized absence and his repeated
acts of misconduct.  His service simply does not rise to the level of even
a general discharge.

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 exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 15 April 1982.  As
a result, the time for the applicant to file a request for correction of
any error injustice to this Board expired on 14 April 1985.  The applicant
did not file within the ABCMR's 3-year statute of limitations and has not
provided 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

___JG  __  ___LO __  ___PT __  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 Gunlicks_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016051                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060622                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1972/04/06                              |
|DISCHARGE AUTHORITY     |AR635-200/ch10 . . . . .                |
|DISCHARGE REASON        |Gd of svc                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 150-185                              |
|ISSUES                  |689/a70.00                              |
|1.144.7000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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