RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         12 September 2006
      DOCKET NUMBER:  AR20060002549


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Allen L. Raub                 |     |Chairperson          |
|     |Ms. Linda M. Barker               |     |Member               |
|     |Mr. Qawley A. Sabree              |     |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 (UD)
be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, he was not able to keep up with the
other trainees, and that his recruiter had completed all his test papers.
He states that going absent without leave (AWOL) was the only way he could
see to get out of the embarrassment and pain he was experiencing at the
time, and the truth of the matter is he could not hang-on.  He claims he
would like to enter law enforcement, which requires an upgrade of his
discharge.

3.  The applicant provides his separation document (DD Form 214), a
criminal records search, and two third-party statements in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 22 December 1972.  The application submitted in this case
is dated 8 February 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's record shows he enlisted in the Regular Army and
entered active duty on 1 July 1972.  He completed basic combat training at
Fort Jackson, South Carolina, and remained there for advanced individual
training (AIT) in military occupational specialty (MOS) 63B (Vehicle
Mechanic).

4.  The applicant's record documents no acts of valor, significant
achievement, or service warranting special recognition, and he never was
advanced beyond the rank of private (PV1)/E-1 during his tenure on active
duty.

5.  The applicant's record shows that while he was still attending AIT, he
accepted non-judicial punishment (NJP) under the provisions of Article 15
of the Uniform Code of Military Justice (UCMJ) on two separate occasions
for being AWOL for 22 days from 10 July through 4 August 1972; and for
being AWOL for 4 days from 11 through 14 September 1972.

6.  On 12 December 1972, a Charge Sheet (DD Form 459) was prepared
preferring a court-martial charge against the applicant for violating
Article 86 of the UCMJ by being AWOL from on or about 16 October 1972
through on or about 11 December 1972.

7.  On 13 December 1972, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
effects of an UD and of the rights available to him.  Subsequent to
receiving this legal counsel, the applicant voluntarily requested discharge
for the good of the service, in lieu of trial by court-martial.

8.  In his request for discharge, the applicant acknowledged he understood
that if his discharge request was approved, he could 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.  He further indicated that he understood that he could encounter
substantial prejudice in civilian life by reason of an UD.

9.  On 20 December 1972, the separation authority approved the applicant's
request for discharge, and he directed the applicant be discharged under
the provisions of chapter 10, Army Regulation 635-200, and that he receive
an UD.

10.  On 22 December 1972, the applicant was separated with an UD after
completing a total of 3 months and 26 days of creditable active military
service, and accruing a total of 82 days of time lost due to being AWOL.

11.  On 7 September 1979, the Army Discharge Review Board (ADRB), after
carefully considering the applicant's overall record of service, and the
issues he raised, denied the applicant's petition to upgrade his discharge.

12.  The applicant provides two third-party statements in support of his
application.  The first from a friend indicates the applicant is a hard-
working and dependable person.  The second from his Church Pastor indicates
the applicant and his wife attended his church for about 1 year many years
ago.  He states that during his limited acquaintance with the applicant, he
appeared to be a friendly and sincere man, attending church faithfully
during that time.

13.  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 UD.

14.  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 contention that his AWOL related misconduct was due to
his being ashamed and embarrassed that he could not keep up with other
trainees, and the supporting statements attesting to his good character he
provided, were carefully considered.  However, these factors are not
sufficiently mitigating to warrant granting the requested relief.

2.  The evidence of record confirms the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, he voluntarily requested
discharge in lieu of trial by court-martial.  All requirements of law and
regulation were met and that the rights of the applicant were fully
protected throughout the separation process. Further, the applicant’s
discharge accurately reflects his overall record of undistinguished
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 when
his case was last reviewed by the ADRB on 7 September 1979.  As a result,
the time for him to file request for correction of any error or injustice
to this Board expired on 6 September 1982.  He failed to 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

___ALR _  __LMB __  __QAS__  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.




                                  _____Allen L. Raub_______
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20060002549                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/09/12                              |
|TYPE OF DISCHARGE       |DUE                                     |
|DATE OF DISCHARGE       |1972/06/01                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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