RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 September 2006
      DOCKET NUMBER:  AR20060004327


      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 undesirable discharge be upgraded to a
general discharge.

2.  The applicant states that he desires to have his undesirable discharge
upgraded to a general discharge so that he may use his veteran’s benefits.
He also states that his discharge should have been upgraded 6 months after
he was discharged.

3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 6 April 1973.  The application submitted in this case is dated
17 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 4 October 1952 and was single when he
enlisted in the Regular Army on 15 December 1970, for a period of 3 years
and training as a motor transport operator.  He was enlisted at Fort
Jackson, South Carolina, and remained there for his basic combat training
(BCT).

4.  On 5 February 1971, while still in BCT, nonjudicial punishment (NJP)
was imposed against him on 5 February 1971 for being absent without leave
(AWOL) from 2 February to 4 February 1971.  His punishment consisted of a
forfeiture of pay, extra duty and restriction.

5. He completed his BCT at Fort Jackson, and remained at Fort Jackson to
undergo his advanced individual training (AIT).  He successfully completed
his AIT and was transferred to Vietnam on 28 May 1971.  He was advanced to
the pay grade of E-3 on 6 June 1971 and to the pay grade of E-4 on 15
October 1971.   He departed Vietnam on 17 March 1972 and was transferred to
Fort Lee, Virginia.

6.  On 9 June 1972, NJP was imposed against him for being AWOL from 1 June
to 8 June 1972.  His punishment consisted of a reprimand, a forfeiture of
pay and extra duty.

7.  On 19 June 1972, NJP was imposed against him for failure to go to his
place of duty, for being out of uniform and for being disorderly and
uncooperative with military police (MP) officials at the MP station.  His
punishment consisted of a reduction to the pay grade of E-3, a forfeiture
of pay and extra duty.

8.  On 13 July 1972, NJP was imposed against him for failure to go to his
place of duty.  His punishment consisted of a reduction to the pay grade of
E-2, a reprimand, and a forfeiture of pay.

9.  On 7 August 1972, he went AWOL and remained absent in desertion until
he was apprehended by civil authorities and was returned to military
control at Fort Gordon, Georgia, on 8 January 1973.  Charges were preferred
against him for the AWOL offense on the date of his return to military
control.  The applicant also indicated at that time that he wanted out of
the Army on any kind of discharge. On 26 February 1973, an additional
charge of five specifications of missing bed check were preferred against
him.

10.  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 to submit a statement in his own behalf whereas he asserted
that he was single and 20 years of age and that while the Army was “OK”, he
personally could not adapt to it.  He went on to state that he did not
think he could go back to duty, that he could not accept the Army and that
he gets along better on the outside.  He further stated that he had been
AWOL before and returned to try and make it and could not.  He also
indicated that his bills fall behind every month and he understood that he
would not receive a good conduct discharge, but an undesirable discharge
instead, and was willing to accept it.

11.  The appropriate authority (a major general) approved the applicant's
request for discharge on 23 March 1973 and directed that he be furnished an
Undesirable Discharge Certificate.

12.  Accordingly, he was discharged under other than honorable conditions
on 6 April 1973, under the provisions of Army Regulation 635-200, chapter
10, in lieu of trial by court-martial.  He had served 1 year, 10 months and
9 days of total active service and had 163 days of lost time due to AWOL.
He was awarded the National Defense Service Medal, the Army Commendation
Medal, the Republic of Vietnam Campaign Medal and the Vietnam Service Medal
with two bronze service stars.

13.  He applied to the Army Discharge Review Board (ADRB) on 23 April 1975,
requesting that his discharge be upgraded because he had waited 2 years,
was now married and employed and going to school and because he deserved
it.    The ADRB determined that his discharge was both proper and equitable
under the circumstances and voted unanimously to deny his request on 19
November 1975.

14.  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 making 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 is normally considered appropriate
and the applicant was briefed accordingly.  Additionally, there have never
been any provisions for an automatic upgrade of such discharges.

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'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.  He also acknowledged that he understood
that he may be deprived of his benefits and stated that he would accept any
kind of discharge in order to get out of the Army.

4.  The applicant's contentions have been considered; however, they are not
sufficiently mitigating to warrant an upgrade when considering his overall
record of service and his repeated misconduct.  Accordingly, his discharge
appropriately characterizes his undistinguished record of service.

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 exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 19 November 1975.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 18 November 1978.  The
applicant did not file within the ABCMR's 3-year statute of limitations and
has not provided 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                 |AR20060004327                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060928                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |19730406                                |
|DISCHARGE AUTHORITY     |AR635-200/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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