RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        2 November 2006
      DOCKET NUMBER:  AR20060006235


      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. James B. Gunlicks             |     |Chairperson          |
|     |Mr. Scott W. Faught               |     |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, in effect, that his undesirable discharge (UD),
characterized as under other than honorable conditions (UOTHC), be upgraded
to honorable.

2.  The applicant states, in effect, that he was told that any time after 6
months, of his discharge, that he could request an upgrade to honorable.
The applicant also declares to the Board that he is an upstanding citizen
and a tax payer with six children.  He adds that he is a good father and
owner operator of his own business.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 16 July 1976, the date of his discharge.  The application
submitted in this case is dated 20 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 applicant's record shows he enlisted in the Regular Army on 7 March
1973.  The applicant successfully completed basic combat training at Fort
Polk, Louisiana, and advanced individual training at Fort Sill, Oklahoma. 
On completion of his advanced training, he was awarded the military
occupational specialty (MOS), 13A, Field Artillery Basic.

4.  On 3 April 1973, the applicant was punished under Article 15, Uniform
Code of Military Justice (UCMJ), for being absent from his appointed place
of duty.  His punishment consisted of a forfeiture of pay, and 14 days
restriction and extra duty.

5.  He was advanced to pay grade E-2 effective 7 July 1973.
6.  On 30 August 1973, he received a summarized Article 15, UCMJ, for being
absent from his appointed place of duty.  His punishment consisted of an
oral reprimand and 7 days restriction and extra duty.

7.  Charges were preferred against the applicant on 17 June 1976, for being
absent without leave (AWOL) from 15 October 1973 to 30 April 1976.

8.  Item 44 (Time Lost Under Section 972) of his DA Form 20 (Enlisted
Qualification Record), shows that he was AWOL from 15 October 1973 to
29 April 1976 (928 days).

9.  On 5 May 1976, he 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 a discharge UOTHC were issued.  He waived
his rights and elected not to submit a statement in his own behalf.

10.  On 29 June 1976, the separation authority approved the applicant's
request for discharge and directed that he be furnished an UOTHC discharge
and that he be reduced to the lowest enlisted grade. 

11.  The applicant was discharged in the rank/pay grade, Private/E-1, on
16 July 1976.  He had a total of 9 months and 22 days of net active service
and 928 days of lost time due to AWOL.

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

13.  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.


14.  Army Regulation 635-200, paragraph 3-7b, 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.

15.  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.

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 applicant has provided no evidence to show that his discharge was
unjust.  He also has not provided any evidence to mitigate the character of
his discharge.

4.  Contrary to the applicant's assertions that he was told that 6 months
after his discharge he could request that it be changed to honorable, the
Army does not have, nor has it ever had, a policy to automatically upgrade
discharges.  Soldiers are advised at the place of their separation that it
is their responsibility to request an upgrade it they receive less than an
honorable discharge.  When an application for the upgrade of a discharge is
received, each case is decided on its own merits.  A change may be
warranted if the Board determines that the characterization of service or
the reason for discharge, or both, were improper or inequitable.


5.  The evidence of record shows that the applicant accumulated a total of
928 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
an upgrade of his discharge. 

6.  The applicant’s declaration that that he is an upstanding citizen and a
tax payer with six children, that he is a good father, and owner and
operator of his own business, has been considered.  However, these
unsupported statements are not adequate to support an upgrade of his
discharge.

7.  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.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 July 1976: therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 15 July 1979.  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

__JBG___  _EM____  __SWF__  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 B. Gunlicks____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060006235                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061102                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19760429                                |
|DISCHARGE AUTHORITY     |AR 635-200, chapt 10                    |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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