RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 September 2006
      DOCKET NUMBER:  AR20060004077


      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             |
|     |Ms. Wanda L. Waller               |     |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 he was young, scared, and threatened by his
military attorney that he would be placed in a stockade for a period of no
less than 20 years.  He contends that he admitted having knowledge of the
incident but he was not involved.  He also contends that he did what he
thought was best and accepted the undesirable discharge.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation
from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 30 November 1973.  The application submitted in this case is
dated 6 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 14 October 1954.  He enlisted on 31 October
1972 for a period of 2 years.  He successfully completed basic combat
training and advanced individual training in military occupational
specialty 11B (light weapons infantryman).

4.  On 15 August 1973, nonjudicial punishment was imposed against the
applicant for failure to repair.  His punishment consisted of extra duty
and restriction.

5.  On 7 September 1973, charges were preferred against the applicant for
failure to repair, disobeying two lawful commands, disobeying a lawful
order, and breaking restriction.  Trial by special-court-martial was
recommended.

6.  On 5 October 1973, after consulting with counsel, the applicant
submitted a request for discharge for the good of the service under the
provisions of Army Regulation 635-200, chapter 10.  He indicated in his
request that he understood that he could be discharged under other than
honorable conditions and furnished an Undesirable Discharge Certificate,
that he might be deprived of many or all Army benefits, that he might be
ineligible for many or all benefits administered by the Veterans
Administration and that he might be deprived of his rights and benefits as
a veteran under both Federal and State law.  He also acknowledged that he
might encounter substantial prejudice in civilian life because of an
undesirable discharge.  He elected to submit a statement in his own behalf;
however, his statement is not available.

7.  On 21 November 1973, the separation authority approved the applicant's
request for discharge and directed that he be furnished an undesirable
discharge.

8.  Accordingly, the applicant was discharged with an undesirable discharge
on 30 November 1973 under the provisions of Army Regulation 635-200,
chapter 10, for the good of the service.  He had served 1 year and 1 month
of total active service.

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

10.  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.  At the time, an undesirable
discharge was normally considered appropriate.

11.  Army Regulation 635-200, paragraph 3-7, 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 was 18 years old when he enlisted and he successfully
completed basic combat training and advanced individual training.
Therefore, age is not a sufficiently mitigating factor.

2.  The applicant's contentions that he was threatened by his military
attorney and that he admitted having knowledge of the incident but he was
not involved
relate to evidentiary and procedural matters that could have been addressed
and conclusively adjudicated in a court-martial appellate process.
However, the applicant voluntarily requested discharge in lieu of trial by
court-martial.

3.  The applicant’s voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial,
was administratively correct and in conformance with applicable
regulations.

4.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.

5.  Since the applicant’s record of service included one nonjudicial
punishment and serious offenses that led to referral of special court-
martial charges, his record of service was not satisfactory.  Therefore,
the applicant's record of service is insufficiently meritorious to warrant
a general discharge.

6.  Records show the applicant should have discovered the alleged injustice
now under consideration on 30 November 1973; therefore, the time for the
applicant to file a request for correction of any injustice expired on 29
November 1976.  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                 |AR20060004077                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060919                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19731130                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 10                   |
|DISCHARGE REASON        |For the good of the service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]