RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        31 August 2006
      DOCKET NUMBER:  AR20060001461


      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 young, foolish, and had no control over his
life.  He didn’t realize what he needed to do with his life and regrets not
staying in the military.

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 6 October 1971, the date of his discharge.  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 records show the applicant entered active duty, at age 17 with
parental consent, on 20 January 1971, completed training, and was awarded
the military occupational specialty (MOS) 64B (Heavy Vehicle Driver).

4.  The applicant was absent without leave (AWOL) for the periods 4 through
6 May 1971, 8 through 11 May 1971, and 14 May 1971 through 2 September
1971, a total of 119 days.  Court-martial charges were preferred on 3
September 1971 for these three periods of AWOL.

5.  On 14 September 1971, after consulting with counsel and being advised
of his rights and options, the applicant submitted a formal request, under
the provisions of Army Regulation 635-200, chapter 10, for discharge for
the good of the service (in lieu of trial by court-martial for an offense
punishable by a bad conduct or dishonorable discharge).  He acknowledged
that if the request was accepted that he could receive a discharge under
other than honorable conditions and be furnished an Undesirable Discharge
(UD) Certificate.  He acknowledged that such a discharge would deprive him
of many or all of his benefits as a veteran, and that he could expect to
experience substantial prejudice in civilian life if he received an UD.  He
elected not to make a statement on his own behalf.

6.  On 6 October 1971 the discharge authority approved the discharge under
the provisions of Army Regulation 635-200, chapter 10, directed the
applicant be reduced to the lowest enlisted grade and be issued an UD.

7.  The applicant was discharged on 6 October 1971 under the provisions of
Army Regulation 635-200, chapter 10 for the good of the service in lieu of
trial by court-martial.  He had 4 months and 18 days of creditable service
with 119 days of lost time.

8.  On 6 October 1981 the Army Discharge Review Board denied the
applicant's petition to upgrade his discharge.

9.  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
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.

10.  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.

11.  The Manual for Courts-Martial, Table of Maximum Punishments, sets
forth the maximum punishments for offenses chargeable under the Uniform
Code of Military Justice (UCMJ).  A punitive discharge is authorized for
offenses under Article 86, for periods of AWOL in excess of 30 days.



DISCUSSION AND CONCLUSIONS:

1.  The discharge proceedings were conducted in accordance with law and
regulations applicable at the time.  The character of the discharge is
commensurate with the applicant's overall record of military service.

2.  Notwithstanding his assertions of youth and immaturity, he was
qualified for enlistment and had demonstrated the capacity for honorable
service by completion of initial training, which is widely recognized as
one of the most stressful periods of military service.

3.  The applicant has not provided nor does the record contain any
mitigating evidence to outweigh the seriousness of his going AWOL during a
period of war; especially in light of the fact that his military record is
otherwise devoid of significant service.

4.  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.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 6 October 1981.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 5 October 1984.  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___  __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                 |AR20060001461                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060831                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19711006                                |
|DISCHARGE AUTHORITY     |AR 635-200. . . . .                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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