RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            28 September 2006
      DOCKET NUMBER:   AR20060003676


      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:

|     |Ms. Linda Simmons                 |     |Chairperson          |
|     |Mr. Paul Smith                    |     |Member               |
|     |Ms. Alice Muellerweiss            |     |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 discharge under other than honorable
conditions be upgraded to a more favorable discharge.

2.  The applicant states that he would like to have his discharge upgraded
because he does not want anything following him or attached to his life
that is negative.  He continues by stating that he has worked in recreation
for over 25 years, has gone to college, has settled down and is raising a
family and he has been active in his community and working with children
all the time.  He further states that while his discharge was not in error,
there was a breach of contract between what he was told and led to believe.
 He also states that if he could turn back the hands of time, he would go
back into the military to help reshape his life and he desires to be able
to talk with youngsters about the benefits of the military.

3.  The applicant provides a copy of his resume, a copy of a letter
thanking him for being a guest speaker at a leadership luncheon, a Master
Angler Certificate of Achievement, an employee training record, and an
article regarding his employment as a recreation specialist.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 19 July 1977.  The application submitted in this case is dated
7 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 born on 29 April 1956 and enlisted in the Regular
Army in Dallas, Texas on 26 July 1976, for a period of 3 years, training as
an infantryman and assignment to the 2nd Armored Division at Fort Hood,
Texas.

4.  He completed his basic combat training at Fort Leonard Wood, Missouri
and was transferred to Fort Benning, Georgia to undergo his advanced
individual training as a light weapons infantryman.

5.  He departed on ordinary leave on 13 December 1976 with a return date of
7 January 1977 and he failed to return.  He was reported as being absent
without leave (AWOL) on 7 January 1977 and remained absent in desertion
until he was returned to military control at Fort Hood, Texas on 22 June
1977, and was transferred to Fort Sill, Oklahoma, where charges were
preferred against him for being AWOL from 7 January 1977 to 22 June 1977.
He also underwent a mental status evaluation and was deemed to be mentally
responsible, able to distinguish right from wrong and to adhere to the
right.

6.  On 30 June 1977, after consulting with 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 understood the
charges that had been preferred against him, 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 also admitted that he was
guilty of the charges against him or of lesser included offenses which
authorized the imposition of a bad conduct or dishonorable discharge.
Additionally, he acknowledged that he had been advised of the maximum
punishment he could receive for his offense if convicted by the
contemplated court-martial.   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
declined the opportunity to submit a statement in his own behalf.

7.  His commander indicated that the applicant found himself unable to
adjust to the military and recommended that his request be approved.

8.  The appropriate authority (a major general) approved his request on 12
July 1977 and directed that he be discharged under other than honorable
conditions.

9.  Accordingly, he was discharged under other than honorable conditions on
19 July 1977, under the provisions of Army Regulation 635-200, chapter 10,
in lieu of trial by court-martial.  He had served 6 months and 12 days of
total active service and had 185 days 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 admit
guilt to the charges against them or of a lesser included offense which
authorizes the imposition of a bad conduct or dishonorable discharge and
they must indicate 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 is normally considered
appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate considering all of the available facts of the case.

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.  In doing so he admitted guilt to the
charges against him.

4.  The applicant’s contentions and supporting documents have been noted by
the Board; however, they are not sufficiently mitigating to warrant relief
when compared to his overall record of undistinguished service, the lack of
mitigating circumstances and the length of his unauthorized absence, which
was almost equal to the amount of active service he performed.

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 19 July 1977; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 18 July 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

___LS___  ___PS __  ___AM__  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.




                                  _____Linda Simmons_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003676                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060928                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |1977/07/19                              |
|DISCHARGE AUTHORITY     |AR635-200/CH10 . . . . .                |
|DISCHARGE REASON        |GD OF SVC                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES         1.       |689/A70.00                              |
|144.7000                |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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