RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 December 2006
      DOCKET NUMBER:  AR20060008478


      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. Peter B. Fisher               |     |Chairperson          |
|     |Mr. Thomas M. Ray                 |     |Member               |
|     |Mr. Jeffrey C. Redmann            |     |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 dishonorable discharged
(sic undesirable discharge [UD]), characterized as under other than
honorable conditions (UOTHC), be upgraded to a general discharge (GD).

2.  The applicant states, in effect, that he went absent without leave
(AWOL) because his mother was sick and he stayed home to take care of her.
He states that there was no one else to take care of her.  She had a heart
attack and stroke.

3.  The applicant provides no additional documentation in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 12 February 1970, the date of his discharge.  The application
submitted in this case is dated 5 May 2006 but was received for processing
on 14 June 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 31 July
1967.  The applicant successfully completed basic combat training at Fort
Knox, Kentucky, and advanced individual training at Fort Leonard Wood,
Missouri.  On completion of his advanced training, he was awarded the
military occupational specialty (MOS), 12A, Pioneer.  He was advanced to
pay grade E-3 on 2 January 1968.

4.  On 28 August 1968, he was punished under Article 15, Uniform Code of
Military Justice (UCMJ), for disobeying a lawful order from a commissioned
officer.  His punishment consisted of a forfeiture of pay.



5.  The applicant was convicted by a special court-martial on 6 October
1969, of being AWOL from 20 March 1969 to 17 September 1969.  His sentence
consisted of confinement at hard labor for 1 month (suspended for
6 months).  His sentence was approved on 15 October 1969.

6.  Item 44 (Time Lost), of his DA Form 20 (Enlisted Qualification Record),
shows that he was AWOL on several occasions and was confined twice.

7.  Charges were preferred against the applicant on 24 January 1970, for
being AWOL from 17 October 1969 to 29 December 1969. 

8.  On 1 February 1970, the applicant voluntarily submitted a request for
discharge for the good of the service in lieu of trial by court-martial for
an offense punishable by a bad conduct discharge or dishonorable discharge.
 He indicated that he understood that if his request were accepted,
he could be discharged under other than honorable conditions and furnished
an undesirable discharge.
He also understood that as a result of the issuance of such a discharge, he
could be deprived of many or all Army benefits, that he might be eligible
for many or all benefits administered by the Veterans Administration [now
the Department of Veterans Affairs], and that he might be deprived of his
rights and benefits as a veteran under both Federal and state law.  He also
understood that he could expect to encounter substantial prejudice in
civilian life because of an under other than honorable conditions
discharge.

9.  Prior to completing his request for discharge for the good of the
service, the applicant was afforded the opportunity to consult with
counsel.  He consulted with counsel on the same date and was fully advised
of the nature of his rights under the UCMJ.  Although he was furnished
legal advice, he was informed that the decision to submit a request for
discharge for the good of the service was his own.

10.  On 9 February 1970, the separation authority approved the applicant's
request for discharge and directed that he be furnished an undesirable
discharge.

11.  The applicant was discharged on 12 February 1970, in the pay grade of
E-1.  He had a total of 1 year, 7 months, and 23 days of creditable service
and 297 days of lost time due to AWOL and confinement.

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



4.  The applicant contends that he went AWOL because his mother was
seriously ill, that he stayed at home to take care of her, that there was
no one else to take care of her, and that she had a heart attack and
stroke.  There is no evidence, and the applicant has provided none, to
support his contentions.

5.  The evidence of record shows that the applicant accumulated a total of
297 days of lost time due to frequent incidents of AWOL.  A cumulative
absence of this duration is serious and there is insufficient evidence to
show that he now deserves an upgrade of his discharge.

6.  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.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 February 1970; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 11 February 1973.  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__  ___JCR__  __TMR__  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.




                                  ___     Peter B. Fisher_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060008478                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061221                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19700212                                |
|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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