RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      21 September 2006
      DOCKET NUMBER:  AR20060002115


      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. Luis Almodova                 |     |Senior 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 the reason for his under other
than honorable conditions discharge be changed and that his discharge be
upgraded to honorable

2.  The applicant states, in effect, that he served his country honorably
from 1973 to 1978 until his father had a series of heart attacks.  He had
made several requests through is unit for advance leave and was denied each
request for reasons unknown to him other than he had just returned from
Korea and hadn't been at his new unit at Fort Ord, California, long enough
to be granted any leave, emergency leave, or otherwise.  His father passed
away shortly thereafter.

3.  The applicant provides no additional documents in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice that
occurred on 5 June 1978.  The application submitted in this case is dated
26 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 limitation 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 Regular Army on 17 September 1973.  He
successfully completed basic combat training at Fort Polk, Louisiana, and
his advanced individual training at Fort Ord, California.  On completion of
his advanced training, he was awarded the military occupational specialty
(MOS) 36K (Tactical Wire Operations Specialist).

4.  The applicant was honorably discharged on 16 June 1976, for the purpose
of immediate reenlistment.  On 17 June 1976, he reenlisted in the Regular
Army for a period of 3 years, for a present duty assignment reenlistment
option.  At the time of his reenlistment, the applicant was serving in the
rank of Specialist Four, with a date of rank of 18 December 1974.  The
applicant had no lost time in his first enlistment period.


5.  DA Form 2475-2, Personnel Data – SIDPERS, shows the applicant was
assigned to Headquarters and Headquarters Company, 2nd Battalion, 32nd
Infantry, by Orders 017-23, Headquarters 7th Infantry Division and Fort
Ord, dated 17 January 1978, with a reporting date of no later than 23
January 1978.  The DA Form 2475-2 shows the applicant reported to his new
unit on 19 January 1978 in advance of his mandated reporting date.

6.  A DA Form 4187, Personnel Action, in the applicant's records show he
was reported absent without leave (AWOL) on 19 January 1978.  A DA Form
3835, Notice of Unauthorized Absence from United States Army, in the
applicant's service personnel records shows in Item 31 (Remarks), the
applicant was at his new unit only long enough to sign in.  He failed to in-
process any further before going AWOL.

7.  The applicant's status was changed from AWOL to dropped from the rolls
of the organization on 24 February 1978.

8.  The applicant returned to military control on 10 March 1978 when he
surrendered himself to military authorities at Fort Knox, Kentucky.

9.  On 22 March 1978 charges were preferred against the applicant for
absenting himself from his unit without leave on 19 January 1978 and
remaining absent until 10 March 1978.

10.  On 23 March 1978, the applicant requested discharge, for the good of
the service, under the provisions of Army Regulation (AR) 635-200, Chapter
10.

11.  The applicant, in his application for discharge, stated he understood
he could request discharge for the good of the service because charges had
been preferred against him under the Uniform Code of Military Justice
(UCMJ), which authorized the imposition of a bad conduct or dishonorable
discharge.

12.  The applicant further stated that he was making his request for
discharge of his own free will and had not been subjected to any coercion
whatsoever by any person.  He stated that he had been advised of the
implications that were attached to his request and that by submitting his
request for discharge; he acknowledged he was guilty of the charges that
had been brought against him.  Moreover, he stated, that under no
circumstances did he desire further rehabilitation for he had no further
desire to perform further military service.
13.  The applicant stated that prior to completing his request for
discharge he had been given the opportunity to consult with counsel.
Counsel, he stated, had fully advised him of the nature of his rights
under the UCMJ.  Although he [counsel] had furnished him legal advice, the
decision to seek discharge, was his own.

14.  The applicant stated that he understood that if his discharge were
accepted, he could be discharged under other than honorable conditions and
furnished an undesirable discharge certificate.  Additionally, he stated
that he had been advised and understood the possible effects of an under
other than honorable conditions discharge and that, as a result of the
issuance of such a discharge, he would be deprived of many or all Army
benefits that he may be ineligible for many or all benefits administered
by the Veterans Administration (VA) [now the Department of Veterans
Affairs] and that he may be deprived of rights and benefits as a veteran
under both Federal and State law.  The applicant stated that he understood
that he could expect to encounter substantial prejudice in civilian life
because of an under other than honorable conditions discharge.

15.  The applicant was advised that he had the right to submit any
statement in his own behalf, which would accompany his request for
discharge.  He made a statement; however, it was poorly reproduced and
cannot be totally deciphered.

16.  The applicant's chain of command recommended approval of his request
for discharge and on 19 April 1978 his request for discharge for the good
of the service was approved.  The applicant was ordered to be reduced to
the rank and pay grade of Private, E-1, and to be discharged under other
than honorable conditions.

17.  The applicant was discharged in the rank and pay grade of Private, E-
1, on 5 June 1978, under the provisions of AR 635-200, Chapter 10, for the
good of the service.

18.  On the date of his discharge, the applicant had completed 4 years, 6
months, and 28 days, total active military service, with 52 days lost.

19.  Item 26 (Decorations, Medals, Badges, Citations, and Campaign Ribbons
Awarded or Authorized), of the applicant's DD Form 214, Certificate of
Release or Discharge from Active Duty, shows that he was awarded the
National Defense Service Medal, the Armed Forces Expeditionary Medal, and
the Sharpshooter Marksmanship Qualification Badge, with Automatic Rifle
Bar.
20.  The record contains no documentary evidence of acts of valor or
achievement that warrant special recognition.

21.  There is no evidence that the applicant applied to the Army Discharge
Review Board (ADRB) for an upgrade of his discharge within its 15-year
statute of limitations.

22.  AR 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 submit, at
any time after the charges have been preferred, 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, but the separation authority may direct a general discharge
or an honorable discharge if such is merited by the Soldier's overall
record and if the Soldier's record is so meritorious that any other
characterization clearly would be improper.

23.  AR 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, 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.

24.  AR 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 separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant departed from his unit at Fort Ord,
California, in an AWOL status after having arrived at his unit and
remaining there only long enough to sign in.  He remained AWOL and was
dropped from the rolls of the organization.  After he was dropped from the
rolls of his organization, he returned to military control at Fort Knox,
Kentucky.

2.  The evidence shows that charges were preferred against the applicant
for being AWOL and after being advised of his rights, he requested
discharge under the provisions of AR 635-200, Chapter 10, for the good of
the service.

3.  The evidence of record shows the applicant's request for discharge was
approved and he was discharged accordingly.

4.  In connection with such a discharge, the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. Procedurally, the applicant was required to consult with defense
counsel, and to voluntarily, and in writing, request separation from the
Army for the good of the service.  In doing so, the applicant admitted
guilt to the stipulated offenses under the UCMJ.

5.  The evidence shows that all requirements of law and regulation were met
and the rights of the applicant were fully protected throughout the
separation process. The type of discharge normally given is under other
than honorable conditions and the evidence shows the applicant was aware of
that prior to the submission of his request for discharge.  The evidence
shows the reason for discharge and the type of discharge given was both
proper and equitable.

6.  The applicant’s entire record of service was reviewed.  The record
contains no documentary evidence of acts of valor or achievement that would
warrant special recognition and an upgrade of his under other than
honorable conditions discharge to honorable.

7.  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 this requirement.

8.  In view of the foregoing, there is no basis for granting the
applicant's request for an upgrade of his under other than honorable
conditions discharge.

9.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 5 June 1978; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 4 June 1981.  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

__JCR___  __DWT__  __WFC_  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                 |AR20060001384                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060921                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19780605                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 10                  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  360  |144.0000                                |
|2.   689                |144.7000                                |
|3.  708                 |144.7100                                |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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