RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        30 NOVEMBER 2006
      DOCKET NUMBER:  AR20060004262


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William Crain                 |     |Chairperson          |
|     |Ms. Alice Muellerweiss            |     |Member               |
|     |Mr. Donald Lewy                   |     |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 records be corrected by upgrading his
discharge.

2.  The applicant states that he has been unable to obtain a true, correct,
or complete copy of his 201 file including his court-martial at Fort Knox,
Kentucky.  He also states that his offenses were committed after his return
from Vietnam.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 19 July 1971.  The application submitted in this case is dated
8 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 enlisted in the Regular Army on 19 May 1969, for a period
of
3 years.  He served in Vietnam from 11 December 1969 to 12 November 1970.

4.  Between February 1970 and October 1970, the applicant accepted five
nonjudicial punishments under the provisions of Article 15, Uniform Code of
Military Justice, for disobeying lawful orders, for being absent without
leave (AWOL), and for being derelict in the performance of his duties.  His
punishments included reductions in grade; forfeitures of pay; and
restriction and extra duties.

5.  On 29 January 1971, he was convicted by a special court-martial of
being AWOL from 21 December 1970 to 5 January 1971.  His sentence consisted
of hard labor without confinement, restriction, and a forfeiture of pay.

6.  On 18 May 1971, his commander preferred court-martial charges against
him for being AWOL from 7 March 1971 to 16 May 1971.

7.  On 2 June 1971, after consulting with legal counsel, the applicant
voluntarily submitted a request for discharge for the good of the service,
under Army Regulation 635-200, Chapter 10, in lieu of trial by court-
martial.  He acknowledged that his request had been submitted of his own
free will with no coercion whatsoever by any person.  He acknowledged that
he understood the effects of receiving an under other than honorable
conditions characterization.  He also acknowledged that he understood that
he may be deprived of many or all Army benefits and that he may be
ineligible for many or all benefits administered by the Veterans
Administration, and that he may be deprived of his rights and benefits as a
Veteran under both Federal and State law.

8.  On 14 June 1971, his unit commander recommended approval of his
discharge request with the issuance of an Undesirable Discharge
Certificate.

9.  On 22 June 1971, a medical examination cleared the applicant for
separation.

10.  On 29 June 1971, his intermediate commander recommended approval of
his discharge request with the issuance of an undesirable discharge.

11.  On 9 July 1971, the appropriate separation authority approved his
discharge request and directed his reduction to Private E-1, and the
issuance of an Undesirable Discharge Certificate.

12.  On 19 July 1971, the applicant was discharged under the provisions of
Army Regulation 635-200, Chapter 10, for the good of the service, with an
undesirable discharge.  His DD Form 214 indicates he had 1 year, 9 months,
and 7 days of creditable service, and 144 days of lost time.

13.  On 18 February 1983, the Army Discharge Review Board denied the
applicant's petition to upgrade his discharge.

14.  Army Regulation 635-200, then in effect, set forth the basic authority
for the separation of enlisted personnel.  Chapter 10 of that regulation
provided, in pertinent part, that a member who had committed an offense or
offenses for which the authorized punishment included a punitive discharge
could at any time after the charges had been preferred; submit a request
for discharge for the good of the service in lieu of trial by court-
martial.  At the time of the applicant’s separation, the regulation
provided for the issuance of an undesirable discharge.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant voluntarily requested separation under Army Regulation
635-200, Chapter 10, for the good of the service, to avoid a trial by court-
martial.

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

3.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

4.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

5.  The applicant is advised to complete a Standard Form 180 (Request
Pertaining to Military Records) and forward it to the National Personnel
Records Center (Military Personnel Records), 9700 Page Avenue, St. Louis,
Missouri 63132-5100, if he desires a copy of his military records.  The
applicant can obtain a copy of this form by accessing the National
Personnel Records Center website at http://www.archives.gov/st-
louis/military-personnel/index.html.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 18 February 1983.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 17 February 1986.  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

___WC__  __AM ___  ___DL   _  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                 |AR20060004262                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061130                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |100.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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