RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        31 August 2006
      DOCKET NUMBER:  AR20060001072


      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 going through a divorce and that he was
operated on for the correction of brain aneurysm in 1992.  He believes the
brain aneurysm was a mitigating factor in the incidents that led to his
discharge.

3.  The applicant provides no additional supporting documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 3 January 1978, the date of his discharge.  The
application submitted in this case is dated 19 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 and entered active duty on
9 September 1974.  He completed training and was awarded military
occupational specialty (MOS) 64C (Motor Transport Operator).

4.  A DA Form 4384-R (Commander’s Report of Inquiry/Unauthorized Absence)
indicates the applicant was AWOL (absent without leave) commencing on 1 May
1977.  It notes "Trouble with civil authorities, Possible alcoholism."

5.  The applicant went AWOL on 1 May 1977 and returned to military control
on 7 June 1977.

6.  He received nonjudicial punishment (NJP) under Article 15, Uniform Code
of Military Justice (UCMJ) for this period of AWOL on 22 June 1977.

7.  The applicant appealed the NJP action and while awaiting his appeal
action he went AWOL on 5 July 1977 and remained absent until 17 November
1977.
8.  Although the discharge documentation is not of record, the available
evidence of record 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.

9.  On 3 January 1978 the applicant was separated under the provisions of
Army Regulation 635-200, chapter 10.  He had 2 years, 10 months and 5 days
creditable service with 173 days of lost time.

10.  The applicant has provided no supporting documentation that he was
suffering of brain aneurysm, which required surgical intervention in 1992,
or that if such a condition existed it was the cause of his misconduct 15
years earlier.

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

12.  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.

13.  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 that, at the time of his AWOL, he was so
impaired as to be unable to tell right from wrong or to adhere to the
right, his contention of having a brain aneurysm does not mitigate the AWOL
and his service was appropriately characterized.

2.  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.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 3 January 1978; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 2 January 1981.  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                 |AR20060001072                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            | 20060831                               |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19780103                                |
|DISCHARGE AUTHORITY     |AR 635-200 . . . .                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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