RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 September 2006
      DOCKET NUMBER:  AR20060000812


      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. John J. Wendland, Jr.         |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William F. Crain              |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. David W. Tucker               |     |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, in effect, that his undesirable discharge under
other than honorable conditions be upgraded to a general discharge under
honorable conditions.

2.  The applicant states, in effect, that he admits that the period of time
he was absent without leave (AWOL) was wrong and wishes that he had
realized this when he was in the Army.  The applicant also states, in
effect, the reason he went AWOL was due to the fact that a fellow Soldier
of African-American ethnicity, with less time-in-grade, was promoted ahead
of him.  The applicant adds that his superiors ridiculed him on a daily
basis by stating that he "was the wrong color to be promoted."  He further
adds, in effect, that he received the maximum punishment for being AWOL;
however, before he was discharged he met another Soldier who had been AWOL
for a longer period of time who received a general discharge.  The
applicant concludes by stating, in effect, that he loves his country and
his dying wish is to have his children know that their father was a veteran
of the U.S. Army.

3.  The applicant provides a copy of the reverse side of his DD Form 293
(Application for the Review of Discharge from the Armed Forces of the
United States), dated 24 May 2002, and DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge), with an effective date of
20 February 1974.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 20 February 1974, the date of his discharge.  The application
submitted in this case is dated 5 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 of 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 military service records show that he enlisted in the
U.S. Army on 30 December 1971.  He completed basic combat training and
advanced individual training and was awarded military occupational
specialty (MOS) 05E (Voice Radio Operator).  The highest rank he attained
while serving on active duty was private/pay grade E-2.  The applicant’s
military records document no acts of valor, significant achievement, or
service warranting special recognition.

4.  The applicant’s military service records contain a copy of a DA Form
2627-1 (Record of Proceedings Under Article 15, UCMJ), dated 28 June 1973.
This document shows that non-judicial punishment was imposed against the
applicant for failing to go at the time prescribed to his appointed place
of duty.  His punishment consisted of reduction to the grade of private/pay
grade E-1 and to perform extra duty for a period of 7 days.

5.  The applicant's military service records contain a DA Form 20 (Enlisted
Qualification Record).  Item 21 (Time Lost Under Section 972, United States
Code and Subsequent to Normal Date ETS), coupled with Item 28 (Remarks) of
the DA Form 20 shows, in pertinent part, that the applicant was AWOL from
28 August 1972 through 17 September 1972; AWOL from 1 November 1972 until
arrested on 19 November 1972 by civilian authorities for failure to return
a rented vehicle, convicted and sentenced to 1 year on the City Prison
Farm, suspended for 1 year, and returned to military control on 19 April
1973; AWOL from
9 November 1973 through 12 December 1973; and AWOL from 14 January 1974
through 23 January 1974.

6.  The applicant's military service records contain a copy of
Headquarters,
U.S. Army Personnel Control Facility, Headquarters Command, U.S. Army
Training Center Engineer and Fort Leonard Wood, Fort Leonard Wood,
Missouri, Special Orders Number 020 (Extract), dated 1 February 1974.
Paragraph 7 of this document shows, in pertinent part, that the applicant
was returned to military control from AWOL status, and having been dropped
from the rolls of his organization, assigned to Company A, U.S. Army
Personnel Control Facility, Fort Leonard Wood, Missouri, effective 24
January 1974.

7.  The applicant's military service records contain a USA MEDDAC Form 801
(Report of Mental Hygiene Evaluation), dated 4 February 1974.  The
"Pertinent Information" section of this document contains an "X" in the
"Yes" block, followed by the entry "This individual was and is capable of
distinguishing right from wrong and adhering to the right.  He is
responsible for his actions and possesses the mental and emotional capacity
to understand and participate in board and other

legal proceedings."  The "Remarks" section of this document contains the
entry "EM [Enlisted Member] is unable to adjust to military duty even after
two years.  He probably will continue to go AWOL until discharged.  EM
cleared for appropriate administrative action."  This document is signed by
the medical corps officer, serving as the mental hygiene officer, who
prepared the report.
8.  The applicant's records contain a Standard Form (SF) 88 (Report of
Medical Examination), dated 4 February 1974, prepared for the purpose of
the applicant's separation.  This document shows, in pertinent part, that
the physician indicated in Item 72 that the "Examinee is qualified for
separation" and affixed his signature in the block next to Item 79 (Typed
or Printed Name of Physician).

9.  The applicant's records contain a DA Form 3082-R (Statement of Medical
Condition - When Examined More Than 3 Days Prior to Separation), dated
20 February 1974, that shows the applicant acknowledged that he underwent a
separation medical examination more than 3 working days prior to his
departure from place of separation and that there had been no change in his
medical condition.

10.  The applicant's military service records are absent a copy of the
documentation related to the applicant's administrative separation action.

11.  The applicant's military service records contain a copy of
Headquarters,
U.S. Army Training Center Engineer and Fort Leonard Wood, Fort Leonard
Wood, Missouri, Special Orders Number 50 (Extract), Paragraph 175, dated
19 February 1974, which shows, in pertinent part, that the applicant was
assigned to the U.S. Army Transfer Point, U.S. Army Training Center
Engineer and Fort Leonard Wood, Fort Lenard Wood, Missouri, for the purpose
of being discharged, effective 20 February 1974.

12.  The applicant's DD Form 214, with an effective date of 20 February
1974, shows that he was discharged under the provisions of chapter 10 of
Army Regulation 635-200 for the good of the service in lieu of trial by
court-martial and that his character of service was under other than
honorable conditions.  This document also shows that the applicant
completed 1 year, 5 months, and
29 days of net active service and had 234 days of time lost during the
period of his enlistment.  This document further shows that the applicant
was issued a
DD Form 258A (Undesirable Discharge Certificate).

13.  On 22 May 2002, the applicant applied to the Army Discharge Review
Board (ADRB) requesting upgrade of his undesirable discharge under other
than honorable conditions to a general discharge under honorable
conditions.  On
7 June 2002, the applicant was notified by Headquarters, Department of the
Army, Army Review Boards Agency, Support Division, St. Louis, Missouri,
that the statutory period for appeals prohibits the ADRB from processing
applications received after 15 years from the date of discharge or release
from active duty.  However, the applicant was advised that he could submit
his appeal of his discharge to the ABCMR.

14.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel)
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 submit a request for discharge
for the good of the service in lieu of trial by court-martial.  The request
may be submitted at any time after charges have been preferred and must
include the individual's admission of guilt.  Although an honorable or
general discharge is authorized, an undesirable discharge under other than
honorable conditions is normally considered appropriate.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his discharge under conditions
other than honorable should be upgraded because he now acknowledges that
going AWOL was wrong, which he did not understand at the time he was in the
Army.  The applicant also contends, in effect, that the reason he went AWOL
was because he was denied promotion based on his race and his superiors
ridiculed him regarding this fact.  However, the applicant provided
insufficient evidence, and there is no evidence in the available records,
that supports the applicant’s contention he did not know that going AWOL
was wrong, that he was improperly denied promotion, or that his superiors
ridiculed him regarding his race.

2.  The evidence of record shows that at the time the applicant was being
processed for administrative separation from the Army he was capable of
distinguishing right from wrong and adhering to the right.  The evidence of
record also shows that he was responsible for his actions and possessed the
mental and emotional capacity to understand and participate in board and
other legal proceedings.  The evidence of record further shows that the
applicant was unable to adjust to military duty and would probably continue
to go AWOL until discharged.  In view of the foregoing and contrary to the
applicant's claim, during the period of time under review, the evidence of
record clearly shows that while serving in the Army the applicant did
understand that going AWOL was wrong.

3.  The evidence of record shows that the applicant completed 1 year, 5
months, and 29 days net active service during the period of time under
review.  He also had 234 days (i.e., nearly 8 months) of lost time during
this period, which did not meet the standards of acceptable conduct and
performance of duty for Army personnel.  Thus, the applicant's service was
not satisfactory.  Therefore, the applicant is not entitled to a general
discharge under honorable conditions.

4.  There is a presumption of administrative regularity in the conduct of
governmental affairs.  This presumption can be applied to any review unless
there is substantial creditable evidence to rebut the presumption.  In this
instance, the "presumption of regularity" is based upon Army Regulation 635-
200 (Active Duty Enlisted Personnel Separations), Chapters 2 and 3, which
provide the procedures for separation and specific guidance in determining
the character of service and description of separation.  Therefore, in the
absence of evidence to the contrary, the Board concludes that the applicant
was properly and equitably discharged in accordance with the regulations in
effect at that time, all requirements of law and regulations were met, and
the rights of the applicant were fully protected throughout the separation
process.  Further, the applicant’s discharge accurately reflects his
overall record of undistinguished service.

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 should have discovered the alleged error or
injustice now under consideration on 20 February 1974; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
19 February 1977.  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

___WFC_  __JCR __  __DWT__  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 F. Crain_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000812                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060921                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19740220                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 10                  |
|DISCHARGE REASON        |In Lieu of Trial by Court-Martial       |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.6301.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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