RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        January 9, 2007
      DOCKET NUMBER:  AR20060008890


      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. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Mr. Jerome Pionk                  |     |Member               |
|     |Mr. Scott 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 that his undesirable discharge be upgraded to an
honorable or general under honorable conditions discharge.

2.  The applicant states that he was only 18 (sic) years old and did not
understand or speak English during his military service.  He did not
realize the future consequences that he would face by signing a voluntary
discharge from the service.  He states that his ex-wife was pregnant and
about to give birth during that time and he wanted to be present at his
daughter’s birth.

3.  The applicant provides no additional documents in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 26 March 1974.  The application submitted in this case is dated
13 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 enlisted in the Regular Army on 30 January 1971 at the
age of 19 years old.  He completed basic combat training and advanced
individual training at Fort Jackson, South Carolina and was awarded
military occupational specialty 11B (Light Weapons Infantryman).  He later
completed basic airborne training and was assigned to Fort Bragg, North
Carolina as a rifleman.  He was advanced to private first class on 1
September 1971.

4.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he was
absent without leave (AWOL) from 10 January 1972 to 6 February 1972.

5.  On 23 May 1973, the applicant was convicted by a special court-martial
for being AWOL from 7 November 1972 to 5 February 1973.  He was sentenced
to a reduction to private E-1 and confinement at hard labor for 2 months
(suspended for 6 months).

6.  His DA Form 20 shows he was AWOL from 2 July 1973 to 21 February 1974.
7.  The applicant's discharge packet is not available.  However, his DD
Form 214 (Armed Forces of the United States Report of Transfer or
Discharge) shows
he was discharged on 26 March 1974 under the provisions of Army Regulation
635-200, chapter 10 for the good of the service with issuance of an
undesirable discharge.  He completed 2 years, 2 months, and 7 days
creditable active service with 354 days of lost time due to AWOL.

8.  There is no evidence of record which shows the applicant applied to the
Army Discharge Review Board (ADRB) within its 15-year statute of
limitations.

9.  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 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 3-7, 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.

11.  Army Regulation 635-200, paragraph 3-7, 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.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of the applicant's chapter 10 discharge proceedings, 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, is presumed to have been administratively correct and in
conformance with applicable regulations.



2.  The applicant’s service record shows he was convicted by a special
court-martial for being AWOL for 91 days.  His service record also shows he
was AWOL two other periods for 263 days.

3.  Although the applicant's discharge packet is not available, it is
presumed the separation authority appropriately directed issuance of an
undesirable discharge based on his overall record.

4.  The applicant’s statements have been noted.  However, they are not
sufficiently mitigating to warrant relief in this case.

5.  There is no evidence of record which indicates the actions taken in his
case were in error or unjust, therefore, there is no basis for granting the
applicant's request for an upgrade of his discharge to honorable or general
under honorable conditions.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 March 1974; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 25 March 1977.  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

JA________  JP______  SF______  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 Anderholm_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060008890                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20070109                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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