RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         3 October 2006
      DOCKET NUMBER:  AR20060003959


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Kenneth L. Wright             |     |Chairperson          |
|     |Mr. Thomas M. Ray                 |     |Member               |
|     |Ms. Sherry J. Stone               |     |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, an upgrade of his undesirable
discharge (UD).

2.  The applicant states, in effect, that he entered the Army when he was
17 years old with no real education.  He claims he joined to receive
vocational training as a carpenter; however, when he was about to graduate
from basic combat training (BCT), his drill sergeant told him he was slated
to go to the infantry.  He states he was young and scared, and perhaps a
little hot-headed, so he went absent without leave (AWOL).  He states that
after a few months, he decided to go back and face up to his mistakes, and
so he turned himself in at Fort Lewis, Washington.  He states his legal
advisor told him he should request a chapter 10 discharge and so he did.
He claims he possibly got two bits of bad advice.  First he is not sure his
drill sergeant was being truthful or just tormenting him when he said he
would not receive the training he enlisted for.  Second there must have
been another way for him to resolve his situation other than discharge.  He
states he was just young and did not have the skills or confidence to
question what his legal advisor was telling him.  He claims he is not proud
of the way his service with the Army ended, but he feels under the
circumstances, he should be granted a change to his discharge status.

3.  The applicant provides a copy of his separation document (DD Form 214)
in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 14 April 1975, the date of his discharge from the Army.
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's record shows that on 3 July 1974, he enlisted in the
Regular Army for 3 years at the age of 17.  The Enlistment Contract (DD
Form 4) on file confirms he enlisted for training in military occupational
specialty (MOS) 51B (carpenter) and assignment to Fort Meade, Maryland.

4.  The applicant arrived at Fort Leonard Wood, Missouri, on 3 July 1974,
to attend BCT.

5.  The applicant's record documents no acts of valor, significant
achievement, or service warranting special recognition.  It does show that
on 10 August 1974, just over a month after he arrived at BCT, the applicant
accepted non-judicial punishment (NJP) under the provisions of Article 15
of the Uniform Code of Military Justice (UCMJ), for disobeying the lawful
order of a commissioned officer.  His punishment for this offense was a
forfeiture of $75.00.

6.  On 2 September 1974, while still attending BCT, the applicant departed
AWOL from his training unit at Fort Leonard Wood.  He remained away for
154 days until returning to military control at Fort Lewis, Washington on
2 February 1975.

7.  On 3 March 1975, the applicant was placed in pre-trial confinement,
where he remained for 5 days until being released on 7 March 1975.  His
Military Personnel Records Jacket (MPRJ) does not include a separation
packet containing the specific facts and circumstances surrounding his
separation processing.  However, it does include a properly constituted DD
Form 214 that shows he was separated under the provisions of chapter 10,
Army Regulation 635-200, for the good of the service in lieu of trial by
court-martial.  It also shows that the time of his separation, he had
completed a total of 4 months and 8 days of creditable active military
service, and that he had accrued 154 days of time lost due to being AWOL.

8.  There is no indication that the applicant applied to the Army Discharge
Review Board (ADRB) for an upgrade of his discharge within the ADRB’s 15-
year statute of limitations.

9.  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 at
any time after the charges have


been preferred, submit a request for discharge for the good of the service
in lieu of trial by court-martial.  A discharge under other than honorable
conditions is normally considered appropriate.  However, at the time of the
applicant's separation the regulation provided for the issuance of an UD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that he was young, immature, and not
educated sufficiently to deal with the situation that arose while he was in
basic training, and that he was improperly advised by his drill sergeant
and legal counsel were carefully considered.  However, the evidence of
record confirms the applicant voluntarily enlisted in the Army and that his
enlistment contract guaranteed his training in MOS 51B and assignment to
Fort Meade upon successful completion of training.  There is no evidence of
record, and the applicant has failed to provide evidence showing that he
was improperly advised, or denied the training he enlisted for.  Therefore,
given his record of short and undistinguished service, the factors he
raises are not sufficiently mitigating to support granting the requested
relief.

2.  The available evidence does not include a separation packet that
contains the specific facts and circumstances surrounding the applicant’s
final discharge processing.  However, it does include a properly
constituted DD Form 214 that identifies the reason and characterization of
the applicant’s final discharge.  Therefore, Government regularity in the
discharge process is presumed.

3.  The applicant’s separation document confirms he was discharged under
the provisions of chapter 10, Army Regulation 635-200, for the good of the
service, in lieu of trial by court-martial.  In connection with such a
discharge, he was charged with the commission of an offense punishable with
a punitive discharge under the UCMJ.  Procedurally, he was required to
consult with defense counsel, and to voluntarily request separation from
the Army in lieu of trial by
court-martial.  In doing so, he would have admitted guilt to the stipulated
offense(s) under the UCMJ that authorized the imposition of a punitive
discharge.

4.  In the absence of information to the contrary, it is concluded that all
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout the separation process.

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 14 April 1975, the date of his
discharge from the Army.  Therefore, the time for him to file a request for
correction of any error or injustice expired on 13 April 1978.  He failed
to 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

___KLW _  __TMR  _  __SJS __  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.



                                  _____Kenneth L. Wright____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060003959                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/10/03                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1975/04/14                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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