RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        16 November 2006
      DOCKET NUMBER:  AR20060003202


      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. Jeffrey C. Redmann            |     |Chairperson          |
|     |Mr. Robert W. Soniak              |     |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 his general discharge issued
under the Department of Defense (DOD) Discharge Review Program (Special)
(SDRP) be affirmed and further upgraded to honorable.

2.  The applicant states that his "Carter pardon should be updated."  He
acknowledges he made mistakes as a young Soldier but that he was charged
with being absent without leave (AWOL) while he was performing KP (kitchen
police) duties.

3.  The applicant provides copies of a Department of Veterans Affairs (VA)
Administrative Decision and a 1 February 2006 letter from a VA PTSD (Post-
Traumatic Stress Disorder) counselor indicating the applicant is suffering
from and being treated for PTSD.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that all possible consideration be afforded the
applicant on upgrading the applicant's discharge to honorable.

2.  Counsel states the applicant acknowledges that he made mistakes as a
young and immature 18 year old.

3.  Counsel provides no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 21 December 1970, the date of his discharge.  The
application submitted in this case is dated 28 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 records show the applicant entered active duty on 27 November 1967,
completed training, and was awarded the military occupational specialty
(MOS) 76Y (Unit Supply Clerk).

4.  He served in Vietnam from 18 July 1968 through 17 July 1969 and in
Germany from 4 April 1970 through 5 October 1970.

5.  The applicant received nonjudicial punishment (NJP) under the
provisions of Article 15, Uniform Code of Military Justice (UCMJ) as
follows:

      a.  on 24 October 1969, for being absent without leave (AWOL) from
13 October 1969 through 20 October 1969;

      b.  on 8 January 1970, for being AWOL from 27 December 1969 through
6 January 1970;

      c.  on 12 February 1970, for being AWOL from 0600 hours on 6 February
1970 through 2115 hours on 7 February 1970; and

      d.  on 1 September 1970, for disrespectful language toward a
commissioned officer.

6.  On 12 June 1969 a special court-martial found the applicant guilty of
disobeying a lawful general order, possession of marijuana, and disrespect
toward a noncommissioned officer (NCO).

7.  On 29 June 1970 a summary court-martial found the applicant guilty of
disobeying a lawful order from an NCO.

8.  The applicant was AWOL from 16 September 1970 through 23 September
1970.

9.  On 8 December 1970, 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.  A
copy of the charge sheet is not of record.
10.  The applicant was discharged on 21 December 1970 under other than
honorable conditions.  He had 2 years, 11 months, and 28 days of creditable
service with 27 days of lost time.

11.  In September 1973 the Army Discharge Review Board (ADRB) reviewed the
applicant's discharge and denied him an upgrade.

12.  On 4 April 1977, the SDRP granted the applicant an upgrade of his
discharge, based on his completion of a tour in Vietnam and 24 months of
satisfactory service.

13.  On 10 August 1978 the ADRB reviewed the applicant's case and the SDRP
upgrade to a general discharge.  By a majority decision it was determined
that an affirmation of the general discharge granted by the SDRP was not
warranted.

14.  On 4 April 1977 the Secretary of Defense directed the Services to
review all less than fully honorable administrative discharges issued
between 4 August 1964 and 28 March 1973 under the program known as the
Department of Defense (DOD) Discharge Review Program (Special) (SDRP).
This program required, in the absence of compelling reasons to the
contrary, that a discharge upgrade to either honorable or general be issued
in the case of any individual who had either completed a normal tour of
duty in Southeast Asia, been wounded in action, been awarded a military
decoration other than a service medal, had received an honorable discharge
from a previous period of service, or had a record of satisfactory military
service of 24 months prior to discharge.  Consideration of other factors,
including possible personal problems which may have contributed to the acts
which led to the discharge, and a record of good citizenship since the time
of discharge, would also be considered upon application by the individual.

15.  In October 1978, as a part of Public Law 95-126 legislation, VA
benefits were denied to any former service member who had been AWOL for
more than 180 consecutive days, or who had been classified as a deserter or
a conscientious objector.  It also required that the DOD establish
historically consistent, uniform standards for discharge reviews.
Reconsideration using these uniform standards was required for all
discharges previously upgraded under the SDRP and certain other programs
was required.  Individuals whose SDRP upgrades were not affirmed upon
review under these historically consistent uniform standards were not
entitled to VA benefits, unless they had been entitled to such benefits
before their SDRP review.


16.  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.  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.

2.  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.

3.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 10 August 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 9 August 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 __  _RWS___  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.




                                  __   Jeffrey C. Redmann____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060003202                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061116                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19701208                                |
|DISCHARGE AUTHORITY     |AR 635-200. . . . .                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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