RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        31 August 2006
      DOCKET NUMBER:  AR20060000269


      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. G. E. Vandenberg              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |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 discharge be upgraded.

2.  The applicant states he was young and made a bad choice.  Now, he
regrets his choice but he did not know how to handle the situation then.
He has been married to the same woman for 37 years and lived a good and
honest life.

3.  The applicant provides copies of a police report; a personal statement;
and three character letters describing him as an honest, hardworking,
exceptional person and a loving, caring father.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 22 October 1970, the dated of his discharge.  The
application submitted in this case is dated 27 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 record shows the applicant entered active duty on 30 January 1969,
completed basic combat training, but did not complete advanced individual
training (AIT).

4.  On 8 September 1969 a special court-martial found the applicant guilty
of being AWOL (absent without leave) for the period 19 May 1969 through
10 July 1969.  He was sentenced to confinement for three months and
forfeiture of $10.00 pay per month for three months.

5.  On 10 December 1969 a special court-martial found the applicant guilty
of being AWOL for the period 28 September 1969 through 6 November 1969.
His sentence was confinement for five months and forfeiture of $50.00 pay
per month for five months.
6.  On 7 October 1970 court-martial charges were preferred for two periods
of AWOL, 5 March 1970 through 30 June 1970 and 9 August 1970 through
12 September 1970.

7.  Although the discharge documentation is not of record, the available
evidence shows that the applicant was discharged under the provisions of
Army Regulation 635-200, Chapter 10, for the good of the service in lieu of
trial by court-martial.  In connection with such a discharge, the applicant
would have had to have been charged with the commission of an offense
punishable under the Uniform Code of Military Justice (UCMJ) with a
punitive discharge.  In the absence of information to the contrary, it is
presumed all requirements of law and regulation were met and the rights of
the applicant were fully protected throughout the separation process.

8.  The applicant was discharged under the provisions of Army Regulation
635-200, chapter 10, for the good of the service in lieu of trial by court-
martial on 22 October 1970.  He had 5 months and 22 days of creditable
service with 457 days of lost time.

9.  The record contains no indication that the applicant was considered for
or awarded any significant personal awards or decoration.

10.  There is no indication the applicant applied to the Army Discharge
Review Board within its 15-year statute of limitation.

11.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of that 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 the charges have been preferred, submit a request for
discharge for the good of the service in lieu of trial by court-martial.  A
discharge under other than honorable conditions is normally considered
appropriate.  However, at the time of the applicant's separation the
regulation provided for the issuance of an undesirable discharge.

12.  The Manual for Courts-Martial, Table of Maximum Punishments, sets
forth the maximum punishments for offenses chargeable under the UCMJ.  A
punitive discharge is authorized for offenses under Article 86, for periods
of AWOL in excess of 30 days.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the
discharge proceedings were conducted in accordance with law and regulations
applicable at the time.  The character of the discharge is commensurate
with his overall record.

2.  The applicant never completed training and his total period of lost
time (457 days) is more than three times that of his creditable service.

3.  The applicant’s statements about his post-service life is noted;
however, these activities are not so exceptionally meritorious as to
outweigh the seriousness of the offenses that led to his discharge,
especially in light of the fact that his military record is devoid of
significant service.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 October 1970; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 21 October 1973.  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

__JCR___  _WDP__  __KSJ___  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 D. Powers_________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2006000269                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060831                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19701022                                |
|DISCHARGE AUTHORITY     |AR . 635-200. . . .                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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