RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:  3 April 2007
      DOCKET NUMBER:  AR20060009510


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mr. Luis Almodova                 |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Ms. Susan A. Powers               |     |Member               |
|     |Mr. Qawiy A. Sabree               |     |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 be
upgraded to honorable.

2.  The applicant states, in effect that he enlisted in the Army on his
own and a family emergency (such as his son's death), heart-breaking news
was telephoned to him by his wife.

3.  He summarizes his request by adding he needs to have his discharge
upgraded because of the family emergency that arose beyond his control and
because he served his country well and he now has a lot of health
difficulties.  He would like to have his discharge changed to honorable
before he is deceased.

4.  In support of his application, the applicant provides a DD Forms 293,
Application for the Review of Discharge from the Armed Forces of the United
States, and a Standard Form 180, Request Pertaining to Military Records.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice that
occurred on 20 June 1974.  The application submitted in this case is dated
28 June 2006, and was received for processing on 10 July 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 limitation 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 evidence shows the applicant enlisted in the Regular Army on 11
August 1972.  He successfully completed basic combat training at Fort
Polk, Louisiana.  He was assigned to the 4th Combat Support Training
Brigade at Fort Polk to be trained in the military occupational specialty
76A (Supply Clerk).  On 14 November 1972 he departed absent without leave
(AWOL) and was subsequently dropped from the rolls of his unit on 19
December 1972.
4.  Item 38 (Record of Assignments), of the applicant's DA Form 20,
Enlisted Qualification Record, shows he returned to military control at
the US Army Personnel Control Facility, Fort Campbell, Kentucky, on 12
February 1973.  On 22 February 1973, he again departed AWOL and was
dropped from the rolls of his unit.  He was again returned to military
control and assigned to the US Army Personnel Control Facility, Fort
Campbell, on 5 March 1973.

5.  On 28 May 1973, the applicant was assigned to the 101st Replacement
Company, Fort Campbell, for assignment to a unit of the 101st Airborne
Division.  On 29 May 1973, the applicant departed from this unit in an
AWOL status and was subsequently dropped from the rolls of the unit on 28
June 1973.  On 31 July 1973, the applicant was returned to the 101st
Replacement Company, Fort Campbell.  He was assigned to the 101st
Administration Company and was awarded the military occupational
specialty 76Y, Unit Supply Specialist, after completing an on-the-
training program.

6.  On 25 October 1973, the applicant was assigned to Headquarters and
Headquarters Company, 101st Aviation Battalion, for duty in the MOS 76Y.
On 11 January 1974, the applicant departed AWOL from this unit and was
dropped from the rolls of his unit on 14 January 1974.

7.  On 1 February 1974, the applicant was apprehended and confined at the
Personnel Confinement Facility, Fort Campbell.  On 13 February 1974, he
was reassigned to the US Army Retraining Brigade, Fort Riley, Kansas.  On
26 February 1974, he escaped from this unit and was dropped from the
rolls of this unit on 26 March 1974.  Item 44 (Time Lost Under Section
972, Title 10, United States Code and Subsequent to Normal Date ETS
[Expiration Term of Service]), of the applicant's DA Form 20, shows he
returned to military control on 5 May 1974.

8.  On 24 April 1973, the applicant received a summary court-martial.  He
was found guilty of absenting himself from his unit on 14 November 1972
and remaining so absent until 12 February 1973 and of absenting himself
from his unit on 22 February 1973 and remaining so absent until 5 March
1973.  The applicant was sentenced to forfeit $75.00 for one month, and
to perform 45 days hard labor without confinement.  The sentence was
approved and ordered executed on 26 April 1973.

9.  The "packet" that was prepared in conjunction with the applicant's
discharge process is not available in his service personnel record;
however, his record does
contain a properly completed DD Form 214, Report of Separation from Active
Duty, that shows the applicant was discharged from the Army on 20 June
1974, with an undesirable discharge, with his service characterized as
under conditions other than honorable, in the rank and pay grade of
Private, E-1.  The authority and reason for discharge shown on the
applicant's DD Form 214 is Army Regulation (AR) 635-200, Chapter 10.  The
SPD (Separation Program Designator) "246" was applied to his DD Form 214.
The SPD "246" is translated to, "For the Good of the Service."

10.  On the date of the applicant's discharge, he had completed 1 year, 1
month and 9 days of creditable active Federal military service.  On this
date, he had 274 days lost time due to AWOL and confinement and 22 days non-
creditable service due to excess leave.

11.  The applicant applied to the Army Discharge Review Board (ADRB) for an
upgrade of his discharge within its 15-year statute of limitations.  On 4
February 1975, he was notified that the ADRB, after careful consideration
of his military record and all other available evidence, had determined
that he had been properly discharged.  His request for an upgrade of his
discharge was denied.

12.  AR 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, at any time
after the charges have been preferred, 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, but the
separation authority may direct a general discharge or an honorable
discharge if such is merited by the Soldier's overall record and if the
Soldier's record is so meritorious that any other characterization clearly
would be improper.

13.  AR 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.
14.  AR 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 separation specifically allows such characterization.

15.  In his application, the applicant attributed his absence (emphasis
added) to a family emergency that arose and which was beyond his control.
In a DD Form 293, he submitted on 19 November 1974, he stated, in effect,
"I was called by my ex-wife that my son was dying and I needed to get home.
 When I got home, I found out that she had lied about this only to get me
in trouble with the Army and I did not have money to get back in the Army
with.  Two months later she again called my Sgt. at Ft. Polk, La.  I was
told that my Captain was in a meeting and due the case of the emergency, I
again went AWOL."

16.  The applicant also alleges that he served his country well and he now
has health difficulties and he would like to have his discharge changed
before he is deceased.

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 ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (AR 15-185, paragraph 2-8),
effectively shortens the filing period, has determined that the 3 year
limit on filing to the 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.  In his application, the applicant attributed his absence to a family
emergency that arose and which was beyond his control.  He also alleges
that he served his country well; however, the evidence does not support
these contentions.

2.  In his application, the applicant also alleges that he now has a lot of
health difficulties and he would like to have his discharge upgraded before
he is deceased.
3.  The applicant is advised that the Army does not upgrade discharges
because applicants are experiencing health difficulties and to enable them
to avail themselves of medical and other benefits that may accrue to them
from a variety of state, Federal, and other veterans organizations as a
result of an upgrade of their discharge.

4.  The evidence shows the applicant entered into a series of absences from
his units at Forts Polk, Campbell, and Riley, which resulted in his being
dropped from the rolls of the unit five times.  He was confined because of
his propensity to go AWOL and in one instance, after being assigned to the
US Army Retraining Brigade, he escaped and was subsequently reported AWOL
and dropped from the rolls of this unit.

5.  The evidence shows the applicant was discharged under the provisions of
AR 635-200, Chapter 10, for the good of the service.  In connection with
such a discharge, the applicant was charged with the commission of an
offense punishable under the UCMJ with a punitive discharge.  Procedurally,
the applicant was required to consult with defense counsel, and to
voluntarily, and in writing, request separation from the Army in lieu of
trial by court-martial.  In doing so, the applicant admitted guilt to the
stipulated offenses under the UCMJ.  Based on the available evidence and in
the absence of evidence to the contrary, Government regularity in the
discharge process is presumed.

6.  The available 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 was normally an under other than honorable
conditions, and it is believed 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.

7.  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.

8.  In view of the foregoing, there is no basis for granting the
applicant's request for an upgrade of his undesirable discharge.
9.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 4 February 1975.
As a result, the time for the applicant to file a request for correction of
any error or injustice expired on 3 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

___SP___  __JI____  ___QAS__  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.




                                  _____John Infante_______
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20060009510                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070403                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 10                  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |144.0143                                |
|3.                      |144.0133                                |
|4.                      |144.7100                                |
|5.                      |                                        |
|6.                      |                                        |


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