RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 January 2007
      DOCKET NUMBER:  AR20060005964


      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. G. E. Vandenberg              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Ronald D. Gant                |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 (UD) be upgraded
to a general discharge.

2.  The applicant states that he was young when he was drafted and did what
he was told by those who were older.  His conduct was excellent during
basic and advanced individual training and for a year after.  He was ill
advised and mislead about reenlisting at that point.  While in Vietnam he
suffered two nervous breakdowns that went unreported and his conduct went
down hill after   that point.

3.  The applicant provides no supporting documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 19 May 1986, the date of his final Army Discharge Review
Board (ADRB) decision.  The application submitted in this case is dated 10
April 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 records show the applicant volunteered for induction and entered
active duty with a two year active duty commitment, at age 17 and 1/2, on
12 June 1970.  He completed training, including parachutist training, and
was awarded the military occupational specialty (MOS) 94B2P (Food Service
Specialist).

4.  Although the enlistment documentation is not of record, the records
show the applicant reenlisted for three years on 21 April 1971.

5.  He attained the rank of specialist four on 8 July 1971 and served in
Vietnam from 28 June 1971 until 16 January 1972.

6.  The applicant received nonjudicial punishment under Article 15, Uniform
Code of Military Justice in August 1971 for being absent without leave
(AWOL)
10 days and in June 1972 for being AWOL 18 days.

7.  On 16 January 1972 while proceeding to assume a guard position the
applicant voluntarily discharged his weapon three times.  The third
discharge resulted in his being wounded in the right leg.  A line of duty
investigation determined that the wound was self inflicted and as a result
the 137 days spent in the hospital recovering from the wound were due to
the applicant's misconduct and as such were considered lost time.

8.  A 12 December 1972 DA Form 188 (Extract Copy of Morning Report)
indicates the applicant went AWOL on 2 October 1972, was dropped from the
rolls on 3 November 1972, returned to military control on 20 November 1972,
and again departed AWOL on 4 December 1972.

9.  A 29 March 1973 DA Form 458 (Charge Sheet) indicates the applicant was
charged with being AWOL for the period 4 December 1972 through 26 March
1973.

10.  After consulting with counsel and being advised of his rights and
options, the applicant submitted a formal request, under the provisions of
Army Regulation 635-200, chapter 10, for discharge for the good of the
service (in lieu of trial by court-martial for an offense punishable by a
bad conduct or dishonorable discharge).  He acknowledged that if the
request was accepted that he could receive a discharge under other than
honorable conditions and be furnished an Undesirable Discharge (UD)
Certificate.  He acknowledged that such a discharge would deprive him of
many or all of his benefits as a veteran, and that he could expect to
experience substantial prejudice in civilian life if he received a UD.

11.  On 17 April 1973 the discharge authority approved the request for
discharge in lieu of trial by court-martial, directed the applicant be
reduced to the lowest enlisted pay grade, and to be discharged with a UD.

12.  The applicant was discharged on temporary records on 20 April 1973.
The DD Form 214 (Report of Separation or Discharge) issued at that time
indicates he had 2 years, 6 months, and 6 days of creditable service with
124 days of lost time.

13.  The Army Discharge Review Board (ADRB) reviewed and denied the
applicant's petition to upgrade his discharge on three occasions, 29
December 1974, 22 December 1976, and 19 May 1986.

14.  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 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.

15.  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 undesirable discharge.

16.  The Manual for Courts-Martial, Table of Maximum Punishments, sets
forth the maximum punishments for offenses chargeable under the UCMJ.  A
punitive discharge is authorized for offenses under Article 86, for periods
of AWOL in excess of 30 days.

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 applicant was separated on temporary records.  As a result part of
his lost time is recorded on the DD Form 214.  In addition to the 124 days
listed on the DD Form 214, the applicant also had 137 days of lost time for
the period of hospitalization due to his self inflicted wound, 10 days of
AWOL in August 1971, and the 50 days of AWOL reported on the DA Form 188,
between 2 October and 20 November 1972.  His total periods of lost time
equal 321 days over twice that which is listed on the DD Form 214.

3.  The applicant's contention that he was young and immature at the time
is not sufficiently mitigating to warrant relief.  The applicant's age at
induction is noted; however, he had satisfactory completed training and
attained the rank of specialist four before any negative incidents were
documented.  His satisfactory performance demonstrates his capacity to
serve and shows that he was neither too young nor immature.

4.  The available evidence does not demonstrate the applicant had a mental
condition that impaired his ability to serve or that he suffered from a
nervous breakdown that contributed to his misbehavior.

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 May 1986.  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 May 1989.  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

__BPI___  __RDG__  __EEM__  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.





                                  _   _Bernard P. Ingold____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060005964                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070111                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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