RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 October 2006
      DOCKET NUMBER:  AR20060002709


      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. John J. Wendland, Jr.         |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. Peter B. Fisher               |     |Member               |
|     |Mr. Rowland C. Heflin             |     |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 under
other than honorable conditions be upgraded to a general discharge under
honorable conditions.

2.  The applicant states, in effect, he was informed at the time of his
discharge that the "type of discharge" he received would automatically be
changed to a general discharge under honorable conditions after five years.
 He also states, in effect, that he requests this change so that he may
receive veterans' benefits.

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

4.  The applicant indicated on the DD Form 149 that the Disabled American
Veterans (DAV) would act as counsel.  On 21 July 2006, the Army Review
Boards Agency notified the DAV that the applicant's request for correction
of records was available for review.  However, to date, the DAV has not
responded to the notification sent by this Agency; therefore, a DAV
counselor has not reviewed the applicant's case.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 11 December 1973.  The application submitted in this case
is dated 2 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 military service records show that he enlisted in the
Regular Army on 2 October 1972.  He completed basic combat training and
advanced individual training and was awarded military occupational
specialty (MOS) 36K (Field Wireman).  The highest rank he attained while
serving on active duty was private/pay grade E-2.  The applicant’s military
service records document no acts of valor, significant achievement, or
service warranting special recognition.
4.  The applicant's military service records contain a DA Form 20 (Enlisted
Qualification Record).  Item 21 (Time Lost Under Section 972, Title 10,
United States Code and Subsequent to Normal Date Expiration of Term of
Service) of the DA Form 20 shows, in pertinent part, that the applicant was
absent without leave (AWOL) from 7 May 1973 through 10 September 1973 and
AWOL from
8 October 1973  through 15 November 1973.

5.  The applicant's military service records contain a Charge Sheet (DD
Form 458), dated 28 November 1973, that preferred a court-martial charge
against the applicant for his violation of Article 86 of the Uniform Code
of Military Justice (UCMJ) for the period of AWOL from 8 October 1973 to 15
November 1973.

6.  On 3 December 1973, the applicant requested a discharge for the good of
the service in lieu of trial by court-martial under the provisions of
chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted
Personnel).  The applicant's legal counsel certified that he had advised
the applicant of the basis for the contemplated trial by court-martial
under circumstances which could lead to a bad conduct or dishonorable
discharge, of the possible effects of an undesirable discharge if the
request for discharge is approved, and the rights available to the
applicant.

7.  The applicant signed his request for discharge which showed that he was
making the request under his own free will and acknowledged guilt to the
offenses charged; that he was afforded the opportunity to speak with
counsel; that he was advised he may be furnished a separation under other
than honorable conditions; that he may be deprived of many or all Army
benefits; that he may be ineligible for many or all Veterans Administration
benefits; that he may be deprived of his rights and benefits as a veteran
under both Federal and State law; and that he may expect to encounter
substantial prejudice in civilian life because of an under other than
honorable discharge.

8.  The applicant's request for discharge contains a copy of FLW Form 366
(Benefits Lost Because of an Undesirable Discharge (AR 635-200)).  This
document shows that the applicant was advised, in pertinent part, 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.  This document also shows that
the applicant affixed his signature to the document, on 3 December 1973,
indicating that he considered the information and understood the benefits
that he may lose because of an undesirable discharge.

9.  On 5 December 1973, the captain serving as commander of Company A,
U.S. Army Personnel Control Facility, U.S. Army Training Center Engineer
and Fort Leonard Wood, Fort Leonard Wood, Missouri, indicated that the
applicant had demonstrated to his immediate supervisor that he was
unwilling to adjust to military service and that further disciplinary or
rehabilitative action would be futile. The company commander recommended
approval of the applicant's request for discharge from the U.S. Army under
the provisions of chapter 10 of Army Regulation 635-200 and his
recommendation included approval and issuance of an undesirable discharge.
The applicant's request for discharge was then endorsed by the lieutenant
colonel serving as battalion commander, who also recommended approval of
the applicant's request for discharge for the good of the service.

10.  On 5 December 1973, the brigadier general serving as acting commander
of Headquarters, U.S. Army Training Center Engineer and Fort Leonard Wood,
Fort Leonard Wood, Missouri, approved the applicant's request for discharge
from the U.S. Army under the provisions of chapter 10 of Army Regulation
635-200 and directed that an undesirable discharge be furnished the
applicant.  The commanding general also directed, in pertinent part, that
the applicant be reduced to the lowest enlisted grade effective the date of
the approval of the discharge.

11.  The applicant's DD Form 214, with an effective date of 11 December
1973, shows that he was discharged under the provisions of chapter 10 of
Army Regulation 635-200 for the good of the service and that his character
of service was under conditions other than honorable.  This document also
shows that the applicant completed 8 months and 28 days of net active
service and he had
166 days of time lost during the period of his enlistment.  This document
further shows that the applicant was issued a DD Form 258A (Undesirable
Discharge Certificate).

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

13.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel),
in effect at the time of the applicant's discharge, set 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 a request for discharge for the good of the service in
lieu of trial by court-martial.  The request may be submitted at any time
after charges have been preferred and must include the individual's
admission of guilt.  Although an honorable or general discharge is
authorized, an undesirable discharge under other than honorable conditions
is normally considered appropriate.

14.  Army Regulation 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 the Soldier's separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his undesirable discharge under
conditions other than honorable should be upgraded to a general discharge
under honorable conditions because he was informed at the time of his
discharge that the "type of discharge" he received would automatically be
changed to a general discharge under honorable conditions after five years.
 However, the applicant provides insufficient documentary evidence in
support of his claim.

2.  There is no evidence of record that shows the applicant was advised
that his undesirable discharge under conditions other than honorable would
automatically be changed to a general discharge under honorable conditions
five years after his discharge from the U.S. Army.  Moreover, the evidence
of record shows the applicant was advised, and he acknowledged that he
understood, 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 because of an
undesirable discharge.  Therefore, the evidence of record fails to
substantiate the applicant's claim that his undesirable discharge under
conditions other than honorable would automatically be changed to a general
discharge under honorable conditions five years after his discharge from
the U.S. Army so that he could receive veterans' benefits.

3.  The evidence of record shows that the applicant completed 8 months and
28 days net active service during the period of service under review.  He
also had 166 days (i.e., approximately five and one-half months) of time
lost during this period, which did not meet the standards of acceptable
conduct and performance of duty for Army personnel.  Thus, the applicant's
service was not satisfactory.  Therefore, the applicant’s undesirable
discharge accurately reflects his overall record of undistinguished
service.

4.  There is a presumption of administrative regularity in the conduct of
governmental affairs.  This presumption can be applied to any review unless
there is substantial creditable evidence to rebut the presumption.  In this
instance, the "presumption of regularity" is based upon Army Regulation
635-200, Chapters 2 and 3, which provide the procedures for separation and
specific guidance in determining the character of service and description
of separation.  Therefore, in the absence of evidence to the contrary, the
Board concludes that the applicant was properly and equitably discharged in
accordance with the regulations in effect at that time, all requirements of
law and regulations were met, the rights of the applicant were fully
protected throughout the separation process, and information concerning
benefits lost because of an undesirable discharge were properly explained.
Therefore, the applicant is not entitled to a general discharge under
honorable conditions.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 11 December 1973; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
10 December 1976.  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

___JTM__  __PBF__  __RCH __  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.




                                  _____John T. Meixell_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060002709                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061017                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19731211                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 10                  |
|DISCHARGE REASON        |For The Good of the Service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0000.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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