RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        16 November 2006
      DOCKET NUMBER:  AR20060003574


      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             |
|     |Mrs. Phyllis M. Perkins           |     |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 under other than honorable
conditions discharge be upgraded.

2.  The applicant states, in effect, he went absent without leave (AWOL)
because he met a girl who was very sick and did not want to leave her.

3.  The applicant provides no additional documenting evidence in support of
this case.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 3 February 1977, the date of his separation from active duty.
The application submitted in this case is dated 27 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 on 18
August 1975 for a period of three years and the highest rank he attained
while serving on active duty was private/pay grade E-2.

4.  The applicant's records do not show any significant acts of valor
during his military service.

5.  The applicant's service records reveal a disciplinary history that
includes his acceptance of nonjudicial punishment (NJP) under the
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on
two separate occasions for the
offenses indicated: on 10 March 1976, without authority left his appointed
place of duty; and on 23 April 1976, for disobeying a lawful order.



6.  On 13 July 1976, a summary court-martial convicted the applicant of
disobeying a lawful order, and for being disrespectful to his superior
noncommissioned officer on or about 30 June 1976.  The resultant sentence
included forfeiture of $240.00 per month for one month and 30 days extra
duty.

7.  The applicant's records show that he was AWOL during the periods 4
August 1976 through 8 August 1976 and 22 August 1976 through 3 January
1977.

8.  The applicant's records show he was apprehended by civil authorities
and returned to military control on 28 December 1976.

9.  A DD Form 458 (Charge Sheet), dated 4 January 1977, shows the applicant
was charged with two specifications of AWOL during the periods 4 August
1976 through 9 August 1976 and 22 August 1976 through 9 December 1976.

10.  On 10 January 1977, the applicant submitted a request for discharge
for the good of the service under the provisions Army Regulation 635-200
(Active Duty Enlisted Administrative Separations), Chapter 10.  In his
request for discharge, the applicant indicated that he had not been coerced
into requesting discharge and had been advised of the implications that
were attached to the request.

11.  The applicant consulted with legal counsel and was advised of the
basis for the contemplated trial by court-martial, the maximum permissible
punishment authorized under the UCMJ, the possible effects of an under
other than honorable conditions discharge, and of the procedures and rights
that were available to him.  He further acknowledged that 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.  The applicant elected not to submit a statement on his own
behalf.

12.  On 14 January 1977, the separation authority approved the applicant's
request for discharge and directed that he receive an Undesirable Discharge
Certificate.  On 3 February 1977, the applicant was discharged accordingly.
 The DD Form 214 he was issued confirms he completed a total of 1 year and
26 days of creditable active military and that he accrued 140 days of time
lost due to AWOL.



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

14.  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,
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, a discharge under other than honorable conditions
is normally considered appropriate.

15.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.

16.  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 that his under other than honorable conditions
discharge should be upgraded to honorable.

2.  Evidence shows the applicant received a summary court-martial for
disobeying a lawful order and for being disrespectful to a noncommissioned
officer.

3.  Evidence also shows the applicant received two nonjudicial punishments
for leaving his appointed place of duty and for disobeying a lawful order.



4.  Evidence of records show court-martial charges were preferred against
the applicant for several offensives of AWOL.

5.  Based on the seriousness of this indiscipline, the applicant's service
clearly does not meet the standards of acceptable conduct and performance
of duty for Army personnel.  This misconduct also renders his service
unsatisfactory.  Therefore, he is not entitled to either a general
discharge or an honorable discharge.

6.  The evidence of record confirms the applicant's separation processing
was accomplished in accordance with the applicable regulation.  All
requirements of law and regulation were met, and his rights were fully
protected throughout the separation process.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 3 February 1977; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 2 February 1980.  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                 |AR20060003574                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061116                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19770203                                |
|DISCHARGE AUTHORITY     |AR365-200                               |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.02                                  |
|2.                      |144                                     |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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