RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 December 2006
      DOCKET NUMBER:  AR20060006289


      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:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Mr. Donald W. Steenfott           |     |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.

2.  The applicant states, in effect, that his wife had cancer, that he is
currently disabled with low income, and is unable to afford medical
treatment.  He also states that he has been going to VA (Department of
Veterans Affairs) for about a year and that VA started him on medication.

3.  The applicant provides a copy of two of his DD Forms 214 (Armed Forces
of the United States Report of Transfer or Discharge and revised to Report
of Separation from Active Duty), dated 24 February 1972 and 11 February
1975, respectively, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 11 February 1975, the date of his discharge.  The
application submitted in this case is dated 17 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
30 March 1970.  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) 35K, Avionics Mechanic.  He was
advanced to pay grade E-4 on 17 January 1971.  He continued to serve until
he was honorably discharged on 24 February 1972, for immediate
reenlistment.  He had completed 1 year, 10 months, and 25 days of
creditable active service.  He reenlisted on 25 February 1972.



4.  The applicant was promoted to specialist five (SP5/E-5) on 1 November
1972.

5.  On 12 September 1974, charges were initially preferred against the
applicant for having departed absent without leave (AWOL) on or about
20 July 1974.  He remained so absent until on or about 30 December 1974.

6.  Item 44 (Time Lost), of his DA Form 20 (Enlisted Qualification Record),
shows that he was AWOL from 20 July 1974 through 30 December 1974 (164
days).

7.  All the documents containing the facts and circumstances surrounding
the applicant's discharge are not present in the available records. 
However, the applicant submitted a copy of his DD Form 214 which shows that
on 11 February 1975, he was discharged under the provisions of Army
Regulation 635-200, chapter 10, for the good of the service, in lieu of
trial by court-martial, in the pay grade of E-1.  He was furnished an UD
Certificate.  He had a total of 3 years, 4 months, and 28 days of
creditable service and 164 days of lost time due to AWOL. 

8.  The applicant applied to the Army Discharge Review Board (ADRB) on
17 April 2006 for an upgrade of his discharge.  However, the ADRB was
precluded from accepting his application due to its statue of limitations
          (15 years).  This Board accepted his application (DD Form 149
[Application for Correction of Military Records]), dated 17 April 2006.

9.  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.

10.  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.


11.  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.  In the absence of evidence to the contrary, the Board presumes
Government regularity and believes that the applicant’s administrative
separation was accomplished in compliance with applicable regulations, with
no procedural errors, which would tend to jeopardize his rights.

2.  The evidence of record shows that the applicant accumulated a total of
164 days of lost time due to AWOL.  The evidence shows that charges were
initially preferred against the applicant on 12 September 1974 for being
AWOL from 20 July 1974 until on or about 30 December 1974.  It is apparent,
from the authority for the applicant's discharge, that charges were finally
preferred against the applicant, and he remained AWOL until 30 December
1974; however, these documents are not available for review and the
applicant failed to provide this information to the Board.  There is
no evidence, and the applicant has provided no evidence, upon which to base
an upgrade of his UD.

3.  The evidence of record shows the applicant was discharged under the
provisions of Army Regulation 635-200, Chapter 10, for the good of the
service, in lieu of trial by court-martial.

4.  The applicant's record contains a properly constituted DD Form 214.
This document identifies the reason and characterization of his discharge. 


5.  The Board does not upgrade or change the characterization of service
for the purpose of enabling former service members to obtain eligibility
for VA or other 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 all his rights and entitlements.

6.  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.
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 11 February 1975; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 10 February 1978.  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

___LDS__  ___PM__  ___DWS_  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 D. Simmons_____
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20060006289                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061205                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |2006                                    |
|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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