RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            06 JULY 2006
      DOCKET NUMBER:   AR20050016692


      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. Eric Andersen                 |     |Chairperson          |
|     |Mr. Michael Flynn                 |     |Member               |
|     |Mr. Dennis Phillips               |     |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 a military policeman who had only one
incident of being absent without leave (AWOL) and was unjustly given an
undesirable discharge.  He goes on to state that he had a good record up
until the one incident of AWOL and that should not ruin the rest of his
life.  He also states that he does not want his children to remember him
with an undesirable discharge.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 19 August 1976.  The application submitted in this case is
dated 9 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 was born on 9 December 1953 and enlisted in Knoxville, Tennessee, on
30 November 1973 for a period of 3 years and training as a military
policeman.  He completed his basic combat training at Fort Knox, Kentucky,
and his advanced individual training at Fort Gordon, Georgia, before beng
assigned to Fort Benning, Georgia, for duty as a military policeman.  He
was advanced to the pay grade of E-4 on 8 April 1975.

4.  He received orders transferring him to the Canal Zone (Panama) with a
reporting date of 31 October 1975; however, he did not report as ordered
and was reported as being AWOL.  He remained absent in a deserter status
until he surrendered to civil authorities in Chattanooga, Tennessee, on 7
July 1976 and was returned to military control at Fort Campbell, Kentucky,
where charges were preferred against him for the AWOL offense.
5.  On 8 July 1976, 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 went AWOL because he could not
bear to be away from his family any longer and because he could not seem to
adjust to Army life.  He stated that he felt that it would be best for
himself and the Army for him to be discharged.

6.  The appropriate authority (a major general) approved the request on
26 July 1976 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 19
August 1976, under the provisions of Army Regulation 635-200, chapter 10,
in lieu of trial by court-martial.  He had served 2 years and 13 days of
total active service and had
251 days of lost time due to being AWOL.

7.  The applicant applied to the Army Discharge Review Board (ADRB) on
11 August 1978 requesting that his undesirable discharge be upgraded to
honorable.  He asserted to that board that he was a good military policeman
and prior to going AWOL, he had not been in any trouble.  He further stated
that it was unjust to reduce him to the pay grade of E-1 and give him an
undesirable discharge for one isolated incident in over 2 years of service.
 On 14 March 1980, the ADRB determined that he had been properly and
equitably discharged and voted unanimously to deny his request.  He again
applied to the ADRB and was twice scheduled for a personal appearance
before the ADRB Traveling Panel.  However, he failed to appear on both
dates and his case was administratively closed.

8.  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.

9.  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 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 his extensive absence.  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.  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 14 March 1980.  As
a result, the time for the applicant to file a request for correction of
any error injustice to this Board expired on 13 March 1983.  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

___EA __  ___MF __  ___DP __  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.


                                  ______Eric Andersen______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050016692                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060706                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1976/08/19                              |
|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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