RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        31 August 2006
      DOCKET NUMBER:  AR20060001580


      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 regrets the decision he made 30 years ago.  He
was newly married, his father had just died, and he was having great
difficulties.  Since his discharge, he has worked in the medical field,
obtaining a degree as a physician’s assistant.  He is currently employed
with the Federal Emergency Management Agency (FEMA) and worked in Louisiana
and Texas during Hurricane Katrina.

3.  The applicant provides photocopies of his National Board for
Certification of Orthopedic Physician Assistants; his Department of
Homeland Security (DHS) Hurricane Katrina special identification (ID) card;
a 2006 DHS/FEMA ID card; and a FEMA/DHS Active Duty Medical Response Team
ID Card issued for the period 18 July 2005 through 17 July 2007, which
indicates he is a Physicians Assistant attached to the “WMD” Strike Team,
Regional Medical Response Team Central.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 14 August 1972, the date of his discharge.  The
application submitted in this case is dated 5 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 5
January 1972 with a guaranteed schooling option in Army Career Group 91
Medical Care and Treatment.  He completed basic combat training and was
advanced to private (E-2) on 8 March 1972.  The applicant did not complete
advanced individual training (AIT).

4.  The applicant was AWOL (absent without leave) for the periods 7 through
11 April 1972 and 3 May 1972 through 28 June 1972.

5.  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 a UD.  The applicant declined to
submit a statement on his own behalf.

6.  On 27 July 1972 the discharge authority approved the request for
discharge under Army Regulation 635-200, chapter 10.  He directed the
applicant be reduced to the lowest enlisted grade and receive a UD.

7.  The applicant was discharged for the good of the service, in lieu of
trial by court-martial on 14 August 1972.  He had 5 months and 9 days of
creditable service with 61 days of lost time.

8.  On 27 December 1978 the Army Discharge Review Board (ADRB) denied the
applicant's petition to upgrade his discharge.

9.  The applicant indicates that he worked his way through college as a
nursing assistant in emergency rooms and obtained a degree as an Orthopedic
Physician Assistant.  He joined FEMA shortly after the attacks of 11
September 2001.

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.  A punitive discharge is authorized for offenses
under Article 86, for periods of AWOL in excess of 30 days.

12.  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.

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.  The applicant’s statements about his post-service training and
employment are noted; however, these factors are not so exceptionally
meritorious as to outweigh the seriousness of his going AWOL during a
period of war, especially in light of the fact that his military record is
devoid of significant service.

3.  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.

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 27 December 1978.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 26 December 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___  __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                 |AR20060001580                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            | 20060831                               |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19720814                                |
|DISCHARGE AUTHORITY     |AR 635-200. . . . .                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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