RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 December 2006
      DOCKET NUMBER:  AR20060008610


      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. Betty A. Snow                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |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)
be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he served his country with honor
and would still now serve his country.  He claims he is trying his best to
be something other than a used-up drug addict, and asks that consideration
be given to upgrading his discharge.

3.  The applicant provides a two-page self-authored statement in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 20 July 1976.  The application submitted in this case is
dated
25 May 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 records show he enlisted in the Regular Army and
entered active duty on 17 November 1972.  He was trained in, awarded, and
served in military occupational specialty (MOS) 11B (Infantryman), and the
highest rank he attained while on active duty was private first class
(PFC).

4.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.  The record does
reveal a disciplinary history that includes his acceptance of non-judical
punishment (NJP) under the provisions of Article 15 of the Uniform Code of
Military Justice (UCMJ) on three separate occasions, and one summary court-
martial (SCM) conviction.




5.  On 3 July 1973, the applicant accepted NJP for being AWOL from on or
about
11 June 1973 through on or about 20 June 1973.  His punishment for this
offense was a reduction to private (PV2)/E-2, forfeiture of $171.00, and 21
days of correctional custody (suspended).

6.  On 19 December 1973, a SCM found the applicant guilty of the violating
Article 86 of the UCMJ by being absent without leave (AWOL) from on or
about
1 August 1973 through on or about 31 August 1973.  The resulting sentence
was a reduction to private (PV1)/E-1, forfeiture of $100.00, and 30 days of
restriction.

7.  On 5 December 1974, the applicant accepted NJP for failing to go at the
time prescribed to his appointed place of duty on 23 November 1974.  His
punishment for this offense was a reduction to PV1 (suspended) and 14 days
of restriction and extra duty.

8.  On 12 December 1974, the applicant accepted NJP for stealing a
telephone from a German Hotel, and for failing to pay a just debt.  His
punishments for these offenses were a reduction to PV1 (suspended),
forfeiture of $75.00, and
14 days of restriction and extra duty.

9.  On 14 May 1976, a Charge Sheet (DD Form 458) was prepared preferring a
court-martial charge against the applicant for violating Article 86 of the
UCMJ for being AWOL from on or about 9 December 1975 through on or about 3
May 1976.

10.  On 14 May 1976, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-marital, the
maximum permissible punishment authorized under the UCMJ, the possible
effects of an UD, and of the procedures and rights that were available to
him.  Subsequent to receiving this legal counsel, the applicant voluntarily
requested discharge for the good of the service in lieu of trial by court-
martial.

11.  On 14 May 1976, the applicant submitted a statement in support of his
request for discharge.  In this statement, he indicated that he was
requesting a Chapter 10 discharge because he was a deserter and that he
wanted out of the Army because he had a job waiting for him when he got
out.

12.  On 28 May 1976, the separation authority approved the applicant’s
request for discharge and directed that he receive an UD.  On 20 July 1976,
the applicant was discharged accordingly.

13.  The DD 214 issued to the applicant upon his discharge confirms he
completed a total of 3 years, 3 months, and 8 days of creditable active
military service, and that he had accrued 209 days of time lost due to
AWOL.

14.  On 16 November 1979, the Army Discharge Review Board (ADRB) denied the
applicant's petition to upgrade his discharge.

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
submit a request for discharge for the good of the service in lieu of trial
by court-martial.  The request may be submitted at any time after charges
have been preferred and must include the individual's admission of guilt.
Although an honorable or general discharge is authorized, a discharge under
other than honorable conditions is normally considered appropriate.

16.  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
submit a request for discharge for the good of the service in lieu of trial
by court-martial.  The request may be submitted at any time after charges
have been preferred and must include the individual's admission of guilt.
Although an honorable or general discharge is authorized, 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 UD.

17.  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 Army Discharge Review Board (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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that he served his country with honor and
that he would like to make something of himself other then a used-up drug
addict was carefully considered.  However, these factors are not
sufficiently mitigating to warrant granting the requested relief.

2.  The evidence of record confirms the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, the applicant voluntarily
requested discharge from the Army in lieu of trial by court-martial.  All
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout the separation process.  Further, the
applicant’s discharge accurately reflects his overall record of
undistinguished service.

3.  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 had failed to
submit evidence that would satisfy this requirement.

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 16 November 1979.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 15 November 1982.  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

___LDS _  __PHM__  ___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                 |AR20060008610                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/12/05                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1976/07/20                              |
|DISCHARGE AUTHORITY     |AR 635-200, Ch 10. . . . .              |
|DISCHARGE REASON        |For the good of the service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.000                                 |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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