RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        31 August 2006
      DOCKET NUMBER:  AR20060000350


      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 offers no contentions as to why he should received an
upgrade. However, in the statement provided on his behalf, it is indicated
that the applicant has severe medical problems and is seeking an upgrade to
qualify for  Department of Veterans Affairs medical benefits.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation
from Active Duty), two Letters of Commendation, and a letter of support
from J____ G_____.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 2 October 1975, the date of his discharge.  The
application submitted in this case is dated 6 October 2005 but received on
7 January 2006.

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 records show the applicant enlisted in the Regular Army and entered
active duty on 25 January 1974.  He completed training and was awarded the
military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic).

4.  The applicant received two Letters of Commendation for being the “Honor
Graduate” from the Wheel Vehicle Mechanic Course.

5.  The applicant was AWOL (absent without leave) for the period from
17 September 1974 to 24 November 1974.

6.  The record indicates that the applicant had been placed in pretrial
confinement for the period 4 through 22 December 1974 (19 days).

7.  The applicant was AWOL for the period 26 December 1974 to 1 January
1975.  Upon his return to military control court-martial charges were
preferred for the two periods of AWOL.

8.  On 28 January 1975 a special court-martial found the applicant guilty
of two periods of AWOL.  He was sentenced to be reduced to private (E-1);
forfeiture of $75.00 pay per month for two months; and confinement for two
months, suspended for five months.

9.  The applicant was AWOL for the period from 7 March 1975 to 6 August
1975. Upon his return to military control court-martial charges were
preferred for this period of AWOL.

10.  After consulting with counsel and being advised of his rights and
options, the applicant submitted a formal request, under the provisions of
Army Regulation 635-200, chapter 10, for discharge for the good of the
service, in lieu of trial by court-martial for an offense punishable by a
bad conduct or dishonorable discharge.  He acknowledged that if the request
was accepted that he could receive a discharge under other than honorable
conditions and be furnished an Undesirable Discharge (UD) Certificate.  He
acknowledged that such a discharge would deprive him of many or all of his
benefits as a veteran, and that he could expect to experience substantial
prejudice in civilian life if he received a discharge under other than
honorable conditions.

11.  The discharge authority approved the separation and directed that the
applicant receive an UD.

12.  The applicant was discharged on 2 October 1975 under the provisions of
Army Regulation 635-200, chapter 10, for the good of the service, in lieu
of trial by court-martial.  He had 1 year and 28 days of creditable service
with 222 days of lost time and 43 days in an excess leave status.

13.  On 20 October 1976 the Army Discharge Review Board denied the
applicant's petition to upgrade his discharge.

14.  In a statement provide in support of the applicant, J____ G____ states
that the applicant came from an abusive family environment and the Hispanic
culture that places a lot of emphasis on family obligations.  She states
that the applicant has had to give up his business due to health reasons
and has recently been hospitalized on several occasions due to serious
medical conditions.

15.  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.

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

17.  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 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 discharge proceedings were conducted in accordance with law and
regulations applicable at the time.  The character of the discharge is
commensurate with the applicant's overall record of military service.

2.  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.

3.  The applicant’s family background is noted, but these factors do not
excuse the misconduct that led to the discharge.  His current economic and
medical conditions are noted, but these factors have no bearing on his
conduct that led to his UD over 30 years ago.  Taken together they do not
justify clement relief, especially in light of the fact that he had only 1
year and 28 days of service which was devoid of any evidence of significant
redeeming service.
4.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 20 October 1976.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 19 October 1979.  However,
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                 |AR20060000350                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060831                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19751002                                |
|DISCHARGE AUTHORITY     |AR 635-200. . . . .                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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