RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 SEPTEMBER 2006
      DOCKET NUMBER:  AR20060000601


      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             |
|     |Ms. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda Simmons                 |     |Chairperson          |
|     |Mr. Paul Smith                    |     |Member               |
|     |Ms. Alice Muellerweiss            |     |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 record be corrected by upgrading his
discharge.

2.  The applicant states that his records are in error partially due to his
time lost while assigned to Fort Dix, New Jersey.  He explains his lost
time as follows:

      a.  Lost time from 30 August 1973 to 26 September 1973, was due to
lost  airline tickets while he was on leave for his father's heart surgery.

      b.  Lost time from 28 January 1974 to 6 March 1974, was due to his
commanding officer trying to cover up the start of a race riot at the Fort
Dix, New Jersey Personnel Control Facility, by sending him home for almost
6 months while they waited for his records to arrive from Germany, and his
problems with securing a ticket to return to the base.

      c.  He has no recollection of his having time lost between 21 May 1974
and 14 June 1974.

      d.  Lost time from 19 September 1974 to 26 March 1975, occurred when
he decided to go AWOL because his commander had lied to him concerning an
assignment.

3.  The applicant further states that he realizes that many of the choices
he made were wrong, but feels he was misled on numerous occasions by the
Army, and was pressured into requesting a Chapter 10 discharge.  He feels
his psychiatric condition, his drug addiction and his immaturity at the
time of his offenses caused his discharge under other than honorable
conditions.

4.  The applicant provides no additional evidence in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 16 May 1975.  The application submitted in this case is dated
29 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 applicant enlisted in the Regular Army on 19 September 1972, for a
period of 3 years.  He served in Germany from December 1973 to March 1974.
The applicant was 17 years of age at the time of his enlistment.

4.  On 24 October 1972, the applicant accepted nonjudicial punishment (NJP)
under the provisions of Article 15, Uniform Code of Military Justice
(UCMJ), for leaving his place of duty on 20 October 1972.  His punishment
included a forfeiture of pay, extra duty and restriction.

5.  On 29 October 1973, the accepted NJP under the provisions of Article
15, UCMJ, for being absent without leave (AWOL) from 30 August 1973 to
27 September 1973.  His punishments included reduction to pay grade E-2,
and
30 days of correctional custody (suspended).

6.  On 8 April 1975, a medical examination cleared the applicant for
separation.

7.  On 18 June 1975, the applicant accepted NJP under the provisions of
Article 15, UCMJ, for being AWOL from 28 January 1974 to 7 May 1974.  His
punishment was a forfeiture of pay.

8.  Evidence shows a DA Form 3835 (Notice of Unauthorized Absence from U.S
Army), dated 12 July 1974, indicates the applicant was AWOL on 21 May 1974.
 There is no indication of the date he returned to military control or any
disciplinary action that may have been taken.  However, his DA Form 20
(Enlisted Qualification Record) shows the applicant was AWOL from 21 May
1974 to 17 June 1974.

9.  Documents in the applicant's records indicate he was AWOL on
19 September 1974, and dropped from the rolls on 18 October 1974.

10.  On 31 March 1975, a report from the Federal Bureau of Investigations
shows the applicant was apprehended by the Richland, Washington Police
Department on 28 March 1975, he was charged with resisting arrest, and
returned to military control on 2 April 1979.




11.  The facts and circumstances concerning the applicant's discharge
proceedings are not in the available records.  However, on 16 May 1975, the
applicant was discharged under the provisions of Army Regulation 635-200,
Chapter 10, with an undesirable discharge, characterized as under other
than honorable conditions.  His DD Form 214 indicates he had 1 year, 10
months and 14 days of active service, and 284 days of lost time.

12.  Army Regulation 635-200, then in effect, set forth the basic authority
for the separation of enlisted personnel.  Chapter 10 of that regulation
provided, in pertinent part, that a member who had committed an offense or
offenses for which the authorized punishment included a punitive discharge
could at any time after the charges had been preferred; submit a request
for discharge for the good of the service in lieu of trial by court-
martial.  At the time of the applicant’s separation, the regulation
provided for the issuance of an under conditions other than honorable
discharge.

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 regulation
applicable at the time.

2.  The applicant voluntarily requested separation under Army Regulation
635-200, Chapter 10, for the good of the service, to avoid trial by court-
martial.  The character of the discharge is commensurate with his overall
record of military service.

3.  The applicant has failed to submit evidence in support of his
contentions that his lost time was some how justified.  The fact that the
applicant now acknowledges that some of his choices were wrong, is
insufficient justification for upgrading his discharge.

4.  There is no evidence in the available records nor did the applicant
provide documentation to substantiate his claim that his psychiatric
condition, drug addiction or immaturity caused his under other than
honorable conditions discharge.  The applicant was 18 years of age at the
time of his first offense, and there is no medical evidence in the
available records of a psychiatric condition or drug addiction.



5.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 May 1975; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
15 May 1978.  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

___LS  __  __PS ___  __AM ___  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.




                                  _____ Linda Simmons________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000601                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060928                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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