RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        31 August 2006
      DOCKET NUMBER:  AR20060000752


      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. Karl L. Briales               |     |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 his undesirable discharge be upgraded to a
general discharge.

2.  The applicant states that he was "scheduled" for a medical discharge,
but he was found fit for duty and returned back to duty.  He states he did
not feel he was medically fit, so he absented himself without leave (AWOL).
 He adds that he was told that the discharge would be automatically
upgraded after 2 years, and he only learned it had not been upgraded when
he sought treatment at a VA (Veterans Affairs) hospital.

3.  The applicant did not provide any additional documentary evidence in
support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 22 June1972, the date of his separation from active duty.
 The application submitted in this case is dated 8 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 applicant's records show he enlisted in the Regular Army for 3
years on 15 September 1970.  He underwent Basic Combat Training at Fort
Jackson, South Carolina from 24 September 1970 to 11 December 1970 (11
weeks).  He then was transferred to Fort Rucker, Alabama where he started
Advanced Individual Training in military occupational specialty (MOS) 67A
(Aircraft Maintenance Apprentice) on 16 December 1970, but there is no
evidence he completed the training or was awarded the MOS.  He was
subsequently transferred to Fort Knox, Kentucky where he received on-the-
job training in MOS 76Y (Unit Supply Specialist).  He was awarded MOS 76Y
on/about 9 April 1971.

4.  Records show the applicant was transferred to Germany in May 1971 and
assigned to the 809th Engineer Company as a unit supply specialist.  For
reasons unknown, his status changed to that of "patient" on 30 August 1971
and he was transferred from Germany to the US Army Medical Department
Activity (MEDDAC), Fort Gordon, Georgia in a patient status.  His unknown
medical issue apparently resolved because he was reassigned from MEDDAC to
Fort Benning, Georgia on 7 October 1971 for duty with the 609th
Transportation Company.

5.  The applicant had two short periods of AWOL from 11-12 January 1971 and
from 11-15 February 1971.  However, on 1 November 1971, he went AWOL from
his unit at Fort Benning and remained absent until on/about 27 March 1972.
During this period of AWOL, he was dropped from his unit's rolls as a
deserter on 2 December 1971.

6.  On 27 March 1972, the applicant was apprehended by civil authorities
and returned to military control at the U.S. Army Personnel Control
Facility, Fort Gordon.  On 28 March 1972, court-martial charges were
preferred against the applicant for AWOL.

7.  On 3 April 1972, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
maximum permissible punishment authorized under the Uniform Code of
Military Justice (UCMJ), the possible effects of an under other than
honorable conditions discharge, and of the procedures and rights that were
available to him.  Subsequent to receiving this legal counsel, the
applicant voluntarily requested discharge for the good of the service, in
lieu of trial by court-martial.

8.  In his request for discharge, the applicant indicated that he
understood that by requesting discharge, he was admitting guilt to the
charge against him, or of a lesser included offense, that also authorized
the imposition of a bad conduct or dishonorable discharge.  He further
acknowledged he understood that if his discharge request was approved, he
could be deprived of many or all Army benefits, that he could be ineligible
for many or all benefits administered by the Department of Veterans
Affairs, and that he could be deprived of his rights and benefits as a
veteran under both Federal and State law.  He also acknowledged that he
understood that he may expect to encounter substantial prejudice in
civilian life by reason of an undesirable discharge.

9.  The applicant also offered a personal statement in his request for
discharge for the good of the service.  In it he stated that he could not
adapt to Army life; that he had a civilian criminal record which probably
disqualified him from service; and that it would save the Army time and
money to discharge him.

10.  On 23 May 1972, the separation authority approved the applicant’s
request for discharge and directed that he receive an undesirable
discharge.  On 22 June 1972, the applicant was discharged.  His DD Form 214
shows he completed a total of 1 year, 4 months, and 8 days of creditable
active military service and that he accrued 154 days of time lost due to
AWOL.

11.  The applicant applied to the Army Discharge Review Boards Agency
(ADRB) to upgrade his discharge.  On 15 June 1983, the ADRB reviewed and
denied the applicant's petition to upgrade his discharge.  The ADRB
determined that the applicant's discharge was proper and equitable and that
the discharge was properly characterized as under other than honorable
conditions.

14.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member's service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

15.  Army Regulation 635-200, paragraph 3-7b, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.

16.  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 requests his undesirable discharge be upgraded to a
general discharge.

2.  The evidence of record confirms that the applicant was charged with an
offense punishable under the UCMJ by a punitive discharge.  After
consulting with legal counsel, the applicant voluntarily requested
separation under the provisions of Army Regulation 635-200, chapter 10, for
the good of the service to avoid trial by court-martial.  His discharge
proceedings were administratively correct and in conformance with
applicable regulations.  There is no evidence of procedural errors that
jeopardized his rights.

3.  The applicant was a patient from on/about 30 August 1971 to on/about
7 October 1971.  There are no records to indicate the nature of his
illness, nor are there any records to show that he was considered for a
medical discharge.  The records only show that he was returned to full duty
after 7 October 1971.

4.  The applicant's contention that he thought his discharge would be
automatically upgraded is not believable.  The applicant previously applied
to the ADRB seeking a discharge upgrade; therefore, he knew, or should have
known, that upgrades are not automatically given, but require application
and individual case review.

5.  Based on his record of indiscipline, the applicant's service does not
meet the standards of conduct and performance expected of Soldiers.  The
applicant's extensive AWOL renders his service undesirable.  He has not
demonstrated entitlement to a general discharge.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 15 June 1983.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 14 June 1986.  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

__wdp___  __jcr___  __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                 |AR20060000752                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060831                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |19720622                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chap 10                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.7000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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