RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            21 September 2006
      DOCKET NUMBER:   AR20060003672


      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. William Crain                 |     |Chairperson          |
|     |Mr. Jeffrey Redmann               |     |Member               |
|     |Mr. David 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 that his undesirable discharge be upgraded to
honorable.

2.  The applicant states, in effect, that it was his understanding at the
time that his discharge would be upgraded to honorable within 6 months of
his discharge.  He further states that he has been a heroin addict for 35
years and has been clean on a methadone program for the last 3 months.  He
also states that he had a stroke 18 months ago and became disabled in the
hospital.

3.  The applicant provides numerous documents related to his medical
expenses.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 28 January 1974.  The application submitted in this case is
dated 3 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.  The applicant was inducted in New Haven, Connecticut on 5 February 1971
and was transferred to Fort Dix, New Jersey to undergo his training.  He
completed his basic combat training and remained at Fort Dix to undergo his
advanced individual training (AIT) as a cook.

4.  On 12 April 1971, while in AIT, he departed absent without leave (AWOL)
and remained absent in desertion until he was returned to military control
at Fort Devens, Massachusetts on 21 January 1972.

5.  However, before charges could be preferred against him, the applicant
again went AWOL on 8 February 1972 and remained absent in desertion until
he was returned to military control on 1 May 1973 and charges were
preferred against him for the AWOL offenses.

6.  On 17 July 1973, he again departed AWOL and remained absent in
desertion until he was returned to military control at Fort Dix on 12
November 1973 and  was placed in confinement.  Charges were preferred
against him for all three AWOL offenses on 13 November 1973.

7.  On 16 November 1973, 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.

8.  The appropriate authority (a major general) approved the applicant’s
request on 13 December 1973 and directed that he be furnished an
Undesirable Discharge Certificate.

9.  Accordingly, he was discharged under other than honorable conditions on
28 January 1974, under the provisions of Army Regulation 635-200, chapter
10, in lieu of trial by court-martial.  He had served 6 months and 24 days
of total active service and had 850 of lost time due to AWOL.

10.  There is no evidence in the available records to show that he ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that board's 15-year statute of limitations.

11.  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 voluntarily requested a discharge for the good
of the service in hopes of avoiding a punitive discharge and having a
felony conviction on his records.

4.  The applicant's contentions have been considered.  However, they are
not sufficiently mitigating to warrant relief when compared to his
extensive unauthorized absence during such a short period of service, his
undistinguished record of service and the lack of mitigating explanation
offered at the time of discharge.  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 should have discovered the alleged error or
injustice now under consideration on 28 January 1974; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 27 January 1977.  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

__WC___  ___JR___  ___DT __  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.




                                  ______William Crain_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003672                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060921                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1974/01/28                              |
|DISCHARGE AUTHORITY     |AR 635-200 / 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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