RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 November 2006
      DOCKET NUMBER:  AR20060004791


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Thomas A. Pagan               |     |Chairperson          |
|     |Mr. Peter B. Fisher               |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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, that his general discharge (GD),
under honorable conditions, be upgraded to honorable.

2.  The applicant states, in effect, that he would like for his discharge
to be upgraded to honorable.  He states that he gets bad headaches and that
he is being treated at the Department of Veterans Affairs (DVA) for PTSD
(Post Traumatic Stress Disorder) and his leg.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty) and a copy of a letter from the DVA
in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 6 May 1972, the date of his discharge.  The application
submitted in this case is undated and was received on 31 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 he enlisted in the Regular Army on 26 July
1968, for 3 years, with an established expiration of term of service (ETS)
date of 25 July 1971.  The applicant successfully completed basic combat
training at Fort Jackson, South Carolina, and advanced individual training
at Fort Gordon, Georgia.  On completion of his advanced training, he was
awarded the military occupational specialty (MOS), 72B, Communications
Center Specialist.  He served in Vietnam from 13 April 1969 to 16 November
1970.  He was promoted to specialist four (SP4/E-4) effective 20 December
1969.

4.  Item 44 (Time Lost), of his DA Form 20 (Enlisted Qualification Record),
shows that he was absent without leave (AWOL) from 3 to 4 September 1968
(1 day) and from 19 January 1971 to 17 January 1972 (364 days). 

5.  Charges were preferred against the applicant on 24 January 1972, for
being AWOL from 19 January 1971 to 17 January 1972.

6.  On 25 January 1972, the applicant consulted with counsel and
voluntarily requested discharge, for the good of the service, in lieu of
trial by court-martial, under the provisions of Army Regulation 635-200,
chapter 10.  In doing so, he acknowledged that he might encounter
substantial prejudice in civilian life and might be ineligible for many or
all benefits administered by the Veterans Administration (VA) if an
undesirable discharge were issued.  He waived his rights and elected not to
submit a statement in his own behalf.

7.  On 14 March 1972, the separation authority approved the applicant's
request for discharge and directed that he be furnished an undesirable
discharge (UD). 

8.  The applicant was discharged on 6 May 1972 in the rank and pay grade of
Private/E-1.  He completed a total of 2 years, 9 months, and 10 days of
creditable service and he had 187 days of lost time due to being AWOL prior
to his scheduled ETS date and 175 days of lost time due to being AWOL
subsequent to his normal ETS date.

9.  The applicant provided a copy of a letter from the DVA, dated 28 July
2003.  The letter informed the applicant that his military service did not
entitle him to VA benefits unless the character of his discharge was
changed.

10.  On 8 September 1978, the applicant applied to the Army Discharge
Review Board for an upgrade of his UD.  His UD was upgraded to general,
under honorable conditions, on 14 August 1980.

11.  Army Regulation 635-200 sets forth the basic authority for 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
undesirable discharge.





12.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member's service generally has met the standards of
acceptable conduct and performance of duty for Army personnel, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.  Whenever there is doubt, it is to be resolved in favor of
the individual

13.  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.

14.  VA Pamphlet 80-06-1 (Federal Benefits for Veterans and Dependents)
describes the variety of Federal benefits available to veterans and their
dependents.  Eligibility for most benefits is based upon discharge from
active military service under other than dishonorable conditions.
Honorable and general discharges qualify a veteran for most VA benefits.
Dishonorable and bad conduct discharges which result from general court-
martial may bar VA benefits.

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.  There is no indication that the
request was made under coercion or duress. 

2.  The type of separation directed and the reasons for that separation
appear to have been appropriate considering all the available facts of the
case.

3.  The evidence shows that the applicant’s undesirable discharge was
upgraded to general, under honorable conditions, on 14 August 1980.
However, he is now requesting that his GD be upgraded to honorable.

4.  The applicant has provided insufficient evidence to show that his
discharge was unjust.  He also has not provided evidence sufficient to
mitigate the character of his discharge.

5.  The evidence of record shows that the applicant accumulated a total of
365 days of lost time due to AWOL.  An absence of this duration is serious
and there is insufficient evidence to show that the applicant now deserves
a further  upgrade of his discharge. 

6.  The applicant alleges that he is being treated for PTSD and for his leg
at the VA; however, he was informed by the VA that his military service did
not entitle him to VA benefits unless the character of his discharge was
changed.

7.  The Board does not change the character of service for the purpose of
enabling former service members to obtain eligibility for benefits.  The
Board has no authority to direct the VA to award benefits.  Since most VA
benefits are based on an individual's service, eligibility depends on the
circumstances.  The applicant is advised to contact the nearest VA office
to seek their assistance in determining his rights and entitlements.

8.  In accordance with governing laws, the VA is the Department responsible
for compensating veterans when service related conditions cause social or
industrial impairment after a Soldier's discharge.

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

10.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 14 August 1980.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 13 August 1983.  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

__PBF___  _TAP ___  __LD  ___  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.




                                  ___     Thomas A. Pagan_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004791                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061121                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19720506                                |
|DISCHARGE AUTHORITY     |AR 635-200, chap 10                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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