RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 August 2006
      DOCKET NUMBER:  AR20060001186


      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. Maria C. Sanchez              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Paul M. Smith                 |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Mr. Ronald D. Gant                |     |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 be
upgraded.

2.  The applicant states, in effect, he was told to enlist in the Army when
he missed three National Guard meetings.  He continues that he was lied to
and railroaded.

3.  The applicant states he enlisted in the National Guard under the
delayed entry program; however, he did not take a physical or was sworn in.
 He further states that upon arrival at Fort Hood, he was informed he could
not be a stock clerk due to his colorblindness and the only position
available was a clerk typist.  The applicant continues that he failed the
schooling and was given orders to be a field wireman in Korea.

4.  The applicant provides no additional documentation in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 4 May 1973, the date of his discharge.  The application
submitted in this case is dated 6 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 enlisted in the Army on 30 September 1972 for a period of
three years.  Upon completion of basic training, he was assigned to the 5th
Advanced Individual Training Brigade, Fort Leonard Wood, Missouri on 1
December 1972 for advanced individual training (AIT).




4.  The applicant's service records reveal a disciplinary history that
includes his acceptance of nonjudicial punishment (NJP) under the
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on
the following two separate occasions for the offenses indicated:  on 23
January 1973, for failure to go at the time prescribed; and on 30 January
1973, for disobeying an lawful order.

5.  DD Form 458 (Charge Sheet), dated 23 March 1973, shows the applicant
was charged for being absent without leave (AWOL) during the period 1
February 1973 through 21 March 1973.

6.  On 28 March 1973, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial that
provided for a punitive discharge, the effects of a request for discharge
for the good of the service and of the rights available to him.  Subsequent
to this counseling, he voluntarily requested discharge under the provision
of Army Regulation 635-200, chapter 10, for the good of the service, in
lieu of trial by court-martial.  In his request for discharge, the
applicant indicated that he had not been coerced into requesting discharge
and had been advised of the implications that were attached to the request.
 He further acknowledged that he could be discharged under other than
honorable conditions and be furnished an Undesirable Discharge Certificate.
 He also stated that he understood that as a result of receiving such a
discharge, he may 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 (VA), and that he could be deprived of his rights and
benefits as a veteran under both Federal and State law.

7.  On 29 March 1973, the applicant was interviewed by his commanding
officer. The commanding officer stated that the applicant was informed, at
the time of his enlistment that the MOS he requested was overfilled, and
therefore he was classified as a clerk typist.  The commanding officer
continued that the applicant claimed he could "not understand clerk typist
school" and started to miss classes after he could not get any assistance
from his Platoon Sergeant and the First Sergeant.

8.  The commanding officer further stated the applicant received a "couple
of" Articles 15 while in AIT, had a short period of AWOL, and originally
enlisted to escape the draft.  The commanding officer concluded by
recommending an undesirable discharge.

9.  On 29 May 1973, the applicant's commander recommended that the
applicant's request for discharge be approved and recommended an
Undesirable Discharge Certificate.
10.  On 4 April 1973, the major general in command of the Headquarters,
Fort Carson and Headquarters 4th Infantry Division approved the applicant’s
request for discharge and directed that he be issued an Undesirable
Discharge Certificate and reduced to the lowest grade.

11.  The applicant's DD Form 214 (Armed Forces of the United States Report
of Transfer or Discharge) shows that he was discharged on 4 May 1973, under
the provisions of chapter 10 of Army Regulation 635-200 (Personnel
Separations – Enlisted Personnel), for the good of the service and issued
an Undesirable Discharge Certificate with his service characterized as
under other than honorable conditions.  He served 7 months and 2 days of
net active service and had 48 days of AWOL.

12.  A review of the applicant's service records do not show he was
enlisted in the Army National Guard prior to, or after his enlistment in
the Army.

13.  There is no evidence in the available records which shows that the
applicant applied to the Army Discharge Review Board for an upgrade of his
discharge within that board's 15-year statute of limitation.

14.  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.

15.  Army Regulation 635-200, paragraph 3-7, 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.

16.  Army Regulation 635-200, paragraph 3-7, 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 he is entitled to upgrade of his undesirable
discharge.

2.  The applicant's contention that he had to enlist into the Army due to
"missed meetings at the National Guard" was carefully considered.  There is
no evidence and the applicant did not submit sufficient evidence showing he
served in the Army National Guard.  Therefore, this contention is contrary
to the facts in this case.

3.  Evidence shows the applicant's administrative separation was
accomplished in compliance with applicable regulations and there is no
indication of procedural errors that would tend to jeopardize his rights.
The discharge proceedings were conducted in accordance with law and
regulations applicable at the time and the character of the discharge is
commensurate with the applicant's overall record of military service.

4.  Evidence of record confirms that the applicant was charged with an
offense that is punishable under the Uniform Code of Military Justice with
a punitive discharge.  After consulting with defense counsel, the applicant
voluntarily requested discharge from the Army in lieu of trial by court-
martial.  His request for discharge was approved by the proper convening
authority.

5.  The applicant's period of service under consideration shows he only
served 7 months and 2 days of his 3-year commitment, had two nonjudicial
punishments, and had 48 days of AWOL.

6.  Based on this record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  This misconduct and lost time also renders his service
unsatisfactory. Therefore, he is not entitled to either a general discharge
or an honorable discharge.

7.  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.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 4 May 1973; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 3 May 1976.  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

_RDG___  _PMS  ___  _LMD__   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.




                                     __Paul M. Smith_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060001186                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060829                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1973/05/04                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |SPN 246 (For the Good of the Service)   |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]