RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            19 September 2006
      DOCKET NUMBER:   AR20060003622


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Ms. Maribeth Love                 |     |Member               |
|     |Mr. Thomas Ray                    |     |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 undesirable discharge be upgraded to a
general discharge.

2.  The applicant states that he was promised by a congressional
representative, his civilian lawyer and the Army, that his discharge would
automatically be upgraded to a general discharge.  He further states that
he was told that the Army was downsizing and that he would receive a
discharge under honorable conditions.  He also states that he served 2
years, 8 months and 8 days and he did his duty.  He continues by stating
that he was allowed to resign so he could get home right away.  He also
states that he is providing a copy of his report of separation (DD Form
214) which shows no court-martials or nonjudicial punishment (Article 15s).


3.  The applicant provides a copy of his DD Form 214 and a letter to a
Veterans Group.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 16 October 1970.  The application submitted in this case is
dated 1 March 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.  He enlisted in Baltimore, Maryland on 10 April 1967 for a period of 3
years and training in Air Defense Missile Operations.  He completed his
basic combat training at Fort Bragg, North Carolina and was transferred to
Fort Bliss, Texas for his advanced individual training (AIT) as a Hercules
Fire Control Crewman.

4.  On 18 July 1967, nonjudicial punishment (NJP) was imposed against him
for missing bedcheck.  His punishment consisted of restriction and extra
duty for 7 days.

5.  Upon completion of his AIT he was transferred to Alaska on 6 September
1967, for assignment to a missile battery at Fort Wainwright, Alaska.  He
was advanced to the pay grade of E-3 on 13 December 1967 and to the pay
grade of E-4 on 10 August 1968.

6.  On 2 December 1968, NJP was imposed against the applicant for violating
a lawful general order (General Order Numbers 1 and 2) by not checking the
motor pool for fire and insuring that all doors were secure.  His
punishment consisted of a forfeiture of pay and extra duty.

7.  On 9 April 1969, he was convicted by a general court-martial of
forcibly entering a government safe, larceny of government property of a
value of $1,000, and larceny of monies belonging to five other Soldiers and
the government in the amount of $1,865.67.  He plead guilty to the charges
and was sentenced to confinement at hard labor for 2 years, reduction to
the pay grade of E-1 and a forfeiture of all pay and allowances.  The
convening authority approved the sentence on 27 May 1969 and he was reduced
in grade accordingly.

8.  He was transferred to the United States Disciplinary Barracks at Fort
Leavenworth, Kansas on 13 June 1969.

9.  On 20 August 1969, the United States Army Court of Military Review
affirmed only so much of the sentence as provided for confinement at hard
labor for 12 months, a forfeiture of all pay and allowances for 12 months
and reduction to the pay grade of E-1.

10.  He remained there until 10 September 1969, when he was transferred to
the Army Retraining Brigade at Fort Riley, Kansas.  He was released from
Fort Riley on 5 November 1969 to return to duty at Fort Bliss, Texas.
However, the applicant went absent without leave (AWOL) and remained absent
until he was apprehended by civil authorities in Maryland and was returned
to military control at Fort Meade, Maryland on 14 May 1970, where charges
were preferred against him for the AWOL charges on 21 May 1970.  After
being advised of his rights, he declined to make a statement or offer any
mitigating circumstances surrounding his absence.

11.  The applicant underwent a separation medical/physical examination on
20 May 1970 and indicated to the examining physician that he had used
hashish and acid the day prior.

12.  On 22 May 1970, after consulting with his defense counsel, the
applicant submitted a request for discharge for the good of the service,
under the provisions of Army Regulation 635-200, chapter 10, in lieu of
trial by             court-martial.  In his request he indicated that he
was making the request of his own free will, without coercion from anyone
and that he was aware of the implications attached to his request.  He
acknowledged that he understood that he could receive a discharge under
other than honorable conditions and that he might be deprived of all
benefits as a result of such a discharge.  He also elected not to submit a
statement in his own behalf.

13.  He again went AWOL on 7 July 1970 and remained absent in a desertion
status until he was again returned to military control at Fort Meade on 21
September 1970 and charges were again preferred against him on 8 October
1970.  After being advised of his rights, he declined to make a statement
or provide any mitigating circumstances surrounding his absence.

14.  On 12 October 1970, after consulting with a different defense counsel,
he again submitted a request for discharge for the good of the service,
under the provisions of Army Regulation 635-200, chapter 10, in lieu of
trial by court-martial.  In his request he indicated that he was making the
request of his own free will, without coercion from anyone and that he was
aware of the implications attached to his request.  He acknowledged that he
understood that he could receive a discharge under other than honorable
conditions and that he might be deprived of all benefits as a result of
such a discharge.  He again elected not to submit a statement in his own
behalf.

15.  The appropriate authority approved his request for discharge and
directed that he be furnished an Undesirable Discharge Certificate.

16.  Accordingly, he was discharged under other than honorable conditions
on 16 October 1970, under the provisions of Army Regulation 635-200,
chapter 10, in lieu of trial by court-martial.  He had served 2 years, 8
months and 8 days of total active service and had 516 days of lost time due
to AWOL and confinement.

17.  The applicant applied to the Army Discharge Review Board (ADRB) for an
upgrade of his discharge on 22 June 1973 contending that his discharge
should be upgraded based on the mitigating circumstances that were
occurring in his life at the time.  He provided a letter from his civilian
attorney, and a letter from his mother’s physician indicating that she had
a stroke on 7 June 1968 and was admitted to a convalescent home on 13
October 1969.  He also provided a letter from the police officer who
arrested him and returned him to military control.  On 15 November 1973,
the ADRB determined that under the circumstances, his discharge was both
proper and equitable and denied his request for an upgrade to honorable.
18.  A review of his records indicates that at the time he enlisted, he
indicated that he was child number eight of nine children in his family,
that his father was deceased and that his mother was in poor health.   A
further review of his records failed to reveal any indication that the
applicant was ever informed or advised that his discharge would be
automatically upgraded.

19.  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.

20.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge
for the good of the service in lieu of trial by court-martial.  A condition
of submitting such a request is that the individual concerned must indicate
that they are submitting the request of their own free will, without
coercion from anyone and that they have been briefed and understand the
consequences of such a request as well as the discharge they might receive.
 A discharge under other than honorable conditions was then and still is
normally considered appropriate.  There have never been any provisions for
an automatic upgrade of such discharges.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, for the good of the service to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a
trial by court-martial, he chose to voluntarily request a discharge for the
good of the service in hopes of avoiding a punitive discharge.

4.  The applicant's contentions and supporting documents as well as his
overall record of service have been considered.  However, they are not
sufficiently mitigating to warrant relief when compared to his overall
undistinguished record of service, his disciplinary record and his extended
absences.  Accordingly, his service simply does not rise to the level of
even a general discharge.

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 exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 15 November 1973.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 14 November 1976.  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

____JA__  ___ML __  ___TR __  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.



                                  ____James Anderholm _____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060003622                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060919                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1970/10/16                              |
|DISCHARGE AUTHORITY     |AR635-200/ch10 . . . . .                |
|DISCHARGE REASON        |Gd of svc                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |689/a70.00                              |
|1.144.7000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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