RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:       9 January 2007
      DOCKET NUMBER:  AR20060008545


      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. Stephanie Thompkins           |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Jerome L. Pionk               |     |Member               |
|     |Mr. Scott W. Faught               |     |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 discharge be upgraded to
general.

2.  The applicant states, in effect, he believes his discharge is unjust.
He would like his discharge upgraded to general under honorable conditions.
 His father sent him an article which stated the Vice President's kid or
some kid who went absent without leave (AWOL) during the Vietnam War
received amnesty for his offense.  This was also around the same time that
discharges were being upgraded because of AWOL.  He is just asking that his
discharge be upgraded.  He feels he has a just cause for an upgrade of his
discharge.

3.  The applicant provides a copy of his Armed Forces of the United States
Report of Transfer or Discharge in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 23 December 1971, the date of his discharge.  The
application submitted in this case is dated 7 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 military records show that he enlisted in the Regular
Army, as a private, pay grade E-1, on 27 August 1970.  He completed his
basic and advanced training and was assigned military occupational
specialty 52B, power generator specialist.  He was advanced to pay grade E-
3 on 19 January 1971.

4.  On 9 February 1971, he was punished under the provisions of Article 15,
Uniform Code of Military Justice, (UCMJ), for striking another Soldier on
the body with his fist.  His punishment included forfeiture of $34.00 per
month for one month, restriction and extra duty for 14 days, and reduction
to pay grade E-2.

5.  He was advanced to pay grade E-4 on 23 July 1971.

6.  On 13 August 1971, he was punished under the provisions of Article 15,
UCMJ, for disrespect towards his superior commissioned officer.  His
punishment included forfeiture of $40.00 and reduction to pay grade E-3,
suspended until 17 November 1971.

7.  He was reduced to pay grade E-3 on 21 October 1971.

8.  On 10 November 1971, a Charge Sheet (DA Form 458) was prepared by the
Commander, 6th Battalion, 62nd Air Defense Artillery.  In this charge
sheet, the applicant was being charged with two specifications of failure
to go to his appointed place of duty on 1 November and 10 November 1971,
one specification of treating with contempt towards his superior non-
commissioned officer on 10 November 1971, one specification of failing to
obey a lawful order on 10 November 1971, one specification of assault upon
another Soldier on 24 October 1971, and one specification of breaking
restriction on 2 November 1971.

9.  On 17 November 1971, the applicant's commander recommended separation
of the applicant from active military service.  The commander stated that
the applicant was a constant source of trouble since his attachment to the
unit.  He also stated that the applicant's release from active military
service as soon as practical would be in the best interest of the Army and
the applicant.

10.  On the same day, after consulting with counsel, the applicant
voluntarily requested discharge for the good of the service, 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 if an undesirable discharge was issued.  He also
acknowledged that trial by court-martial under the circumstances could lead
to a bad conduct discharge or dishonorable discharge, and the effect of
this request for discharge, and the rights available to him.  He waived his
rights and elected not to submit a statement in his own behalf.

11.  On 20 November 1971, the Commander, 6th Battalion, 62d Air Defense
Artillery, recommended approval of the applicant's request.  The commander
stated that due to the applicant's character behavior he was placed in pre-
trial confinement.  The applicant had a completely negative attitude toward
the military service and little or no regard for his fellow-troopers.

12.  On 3 December 1971, the Commander, 10th Artillery Group, did not
concur with the applicant's commander's recommendation for approval of the
applicant's request for discharge for the good of the service in lieu of
court-martial.  He stated that because of the seriousness of the offense
charged against the applicant, assaulting a military policeman who was in
the process of executing his proper duties, he recommended the applicant be
tried by special court-martial, empowered to adjudge a bad conduct
discharge.

13.  On 14 December 1971, the appropriate authority approved the
applicant's request for his discharge for the good of the service and
directed an Undesirable Discharge Certificate be issued and he be reduced
to pay grade E-1.

14.  He was discharged on 23 December 1971, in pay grade E-1, under the
provisions of Army Regulation 635-200, Chapter 10, for the good of the
service.  He was credited with 1 year, 3 months, and 24 days of total
active service and 3 days of lost time due to being AWOL.

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

16.  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
Certificate.

17.  Army Regulation 635-200, chapter 3-7b, also 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.

18.  Presidential Proclamation 4313, issued on 16 September 1974, provided
for the issuance of a clemency discharge to certain former Soldiers, who
voluntarily entered into and completed an alternate public work program
specifically designated for former Soldiers who received a less than
honorable discharge for AWOL related incidents between August 1964 and
March 1973.  Under this proclamation, eligible deserters were given the
opportunity to request discharge for the good of the service with the
understanding that they would receive an undesirable discharge.  Upon
successful completion of the specified alternative service, the deserter
was issued a clemency discharge.  The clemency discharge did not affect the
individual’s underlying discharge, and did not entitle him to any VA
benefits.  Rather, it restored federal and, in most instances, state civil
rights which may have been denied due to the less than honorable discharge.
 If a participant of the program failed to complete the period of
alternative service the original undesirable characterization of service,
would be retained.  This proclamation identified three categories of
persons and permitted them to apply for clemency discharge.  Those
categories were:

      a.  civilian fugitives who were draft evaders
      b.  members of the military who were still AWOL, and
      c.  former military members who had been discharged for desertion,
AWOL, or missing movement.

Individuals in the above categories were afforded the opportunity to
return to military control and accept an undesirable discharge or stand
trial.  For those who elected to earn a clemency discharge - those who
were AWOL and discharged members - they could be required to perform up to
24 months alternate service.  Upon successful completion a clemency
discharge would be issued.  (NOTE: In any event, the clemency discharge
did not affect the individual’s underlying discharge, and did not entitle
him to any VA benefits.)

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because
time has passed.  However, his records clearly show that charges were
brought against the applicant for twice failing to go to his appointed
place of duty, treating his superior non-commissioned officer with
contempt, failing to obey a lawful order, assault, and breaking restriction
and he requested discharge in lieu of facing a court-martial.  The
applicant waived his opportunity to appear before a special court-martial
to prove his innocence.

2.  The Commander, 10th Artillery Group, recommended disapproval of the
applicant's request because of the seriousness of the assault offense.  He
felt the applicant should have been tried by special-court martial and
possible separation with a bad conduct discharge.

3.  The applicant's request for discharge for the good of the service was
approved on 14 December 1971.  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.

4.  The evidence shows that all requirements of law and regulation were met
and the rights of the applicant were fully protected throughout the
separation process. The characterization of service for this type of
discharge is normally under other than honorable conditions and the
evidence shows that the applicant was aware of that prior to requesting
discharge.  It is believed that the reason for discharge and the
characterization of service were both proper and equitable.

5.  In order to justify correction of a military record, the applicant must
show, 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.  There is no evidence that the applicant applied to the ADRB for an
upgrade of his discharge within its 15-year statute of limitations.

7.  In view of the foregoing, there is no basis for granting the
applicant's request for an upgrade of his discharge due to the passage of
time.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 December 1971, therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 22 December 1974.  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

__A_____  __JLP___  _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 E. Anderholm____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060008545                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070109                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1971/12/23                              |
|DISCHARGE AUTHORITY     |AR635-200, Chapter 10                   |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |A70                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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