RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 SEPTEMBER 2006
      DOCKET NUMBER:  AR20060001318


      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. Marla Troup                   |     |Chairperson          |
|     |Mr. Chester Damian                |     |Member               |
|     |Mr. Edward Montgomery             |     |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 records be corrected by upgrading his
discharge.

2.  The applicant states he made a mistake during his younger years, and
regrets what he did.

3.  The applicant provides a copy of his request for health benefits from
the Department of Veterans Affairs (VA), a statement showing his monthly
income, and his December 2005 VA medical notes, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 26 November 1973.  The application submitted in this case is
dated 18 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 initially enlisted in the Regular Army on 2 April 1969
for a period of 3 years, and reenlisted on 12 April 1971, for a period of 6
years.  He served in Hawaii from August 1969 to August 1972.

4.  On 23 September 1970, the applicant accepted nonjudicial punishment
(NJP) under the provisions of Article 15, Uniform Code of Military Justice
(UCMJ), for failure to go at the time prescribe to his place of duty and
for being disrespectful to a superior noncommissioned officer.  His
punishment included restriction and extra duty.

5.  On 16 February 1971, he accepted NJP under the provisions of Article
15, UCMJ, for being disrespectful in language to a superior commissioned
officer and for disobeying a lawful order from superior commissioned
officer.  His punishment was reduction to pay grade E-3 (suspended for 30
days) and a forfeiture of pay.
6.  On 21 June 1971, he accepted NJP under the provisions of Article 15,
UCMJ, for failure to go at the time prescribed to his place of duty.  His
punishment was reduction to pay grade E-3 and a forfeiture of pay
(suspended for 60 days).

7.  On 10 August 1972, the applicant accepted NJP under the provisions of
Article 15, UCMJ, for being absent from his place of duty on 1 August 1972
and
2 August 1972.  His punishment included a forfeiture of pay and extra duty.

8.  On 17 October 1973, his commander preferred court-martial charges
against him for being absent without leave (AWOL) from 2 July 1973 to 7
October 1973.

9.  On 17 October 1973, after consulting with legal counsel, the applicant
voluntarily submitted a request for discharge for the good of the service,
under Army Regulation 635-200, Chapter 10, in lieu of trial by court-
martial.  He acknowledged that his request had been submitted of his own
free will with no coercion whatsoever by any person.  He acknowledged that
he understood the effects of receiving an under other than honorable
conditions characterization.  He also acknowledged that he understood that
he may be deprived of many or all Army benefits and that he may be
ineligible for many or all benefits administered by the Veterans
Administration, and that he may be deprived of his rights and benefits as a
Veteran under both Federal and State law.

10.  On 7 November 1973, the appropriate separation authority approved the
applicant’s request for discharge for the good of the service, under the
provisions of Army Regulation 635-200, Chapter 10, and directed his
reduction to the lowest enlisted grade and the issuance of an undesirable
discharge.

11.  On 26 November 1973, the applicant was issued an undesirable
discharge, characterized as under other than honorable conditions, under
the provisions of Army Regulation 635-200, Chapter 10.  His DD Form 214
(Report of Separation from Active Duty) indicates he had 2 years, 4 months,
and 14 days of active duty, and 101 days of lost time.

12.  On 19 April 1979, the Army Discharge Review Board denied the
applicant's petition to upgrade his discharge.

13.  The applicant submits a statement from the Miami, Florida Department
of Veterans Affairs, showing that he has a monthly income of $846.00.  He
also submits medical documents showing his psychiatric treatment on an
outpatient basis, to include the diagnosis and prescribed medications.


14.  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 undesirable discharge.

15.  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's voluntary request for separation under the provisions
of Army Regulation 635-200, Chapter 10, for the good of the service, to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.  The type of discharge directed
and the reasons therefore were appropriate considering the facts of the
case.

2.  The applicant's contention that he was young when he made his mistake
is without merit.  The applicant was 19 years of age at the time of his
first offense, and 22 years of age when his commander preferred court-
martial charges against him for being AWOL.

3.  The fact that the applicant is now sorry and regrets the mistakes he
made, is not justification for upgrading his discharge.

4.  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



5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 19 April 1979.  As
a result, the time for the applicant to file a request for correction or
any error or injustice to this Board expired on 18 April 1982.  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

___MT __  ___CD __  ___EM __  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.




                                  _____   Marla Troup________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001318                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060926                                |
|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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