RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      1 May 2007
      DOCKET NUMBER:  AR20060009568


      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. Paul M. Smith                 |     |Chairperson          |
|     |Mr. David K. Haasenritter         |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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.

2.  The applicant states, in effect, that his discharge was not as a result
of court-martial.  All he had to do was to write a statement and it was
over.  On that day, in 1974, he states, they told a room full of
individuals that in 10 years their discharge would be upgraded.  They were
not told they had only 15 years to apply for an upgrade.

3.  In support of his application, the applicant provides a copy of his DD
Form 214, Report of Separation from Active Duty; a copy of a DD Form 215,
Correction to DD Form 214; and a copy of a letter he received from the
Army Review Boards Agency Support Division, St. Louis, Missouri, notifying
him the statutory appeals limitation to the Army Discharge Review Board of
15-years had been surpassed.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 6 September 1974, the date of his discharge.  The
application submitted in this case is dated 23 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 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 and
entered active duty on 30 December 1965.  He successfully completed basic
combat training at Fort Knox, Kentucky, and advanced individual training at
Fort Lee, Virginia.  On completion of his advanced training, he was awarded
the military occupational specialty (MOS), 94B (Cook).  The highest rank he
attained while serving on active duty was Specialist Four (SP4).

4.  Item 31 (Foreign Service), of the applicant's DA Form 20, shows he
served in Germany from 18 February 1968 through 27 July 1968 and in Vietnam
from 11 September 1968 through 10 September 1969.

5.  Before his departure for overseas service, the applicant had
extensive lost time.  Item 44 (Time Lost), of his DA Form 20, shows he
had the following lost time:  8 September 1966 to 3 November 1966, due to
AWOL (absent without leave), 57 days; 5 November 1966 to 22 December
1966, due to confinement, 48 days; 26 December 1966 to 20 January 1967,
due to AWOL, 26 days; 28 January 1967 to 9 February 1967, due to
confinement, 13 days; 27 March 1967 to 22 June 1967, 88 days, due to
AWOL; and, 23 June 1967 to 1 February 1968, 224 days, due to confinement.

6.  On 9 February 1967, the applicant received a special court-martial.
He was found guilty of absenting himself without proper authority on
about 8 September and remaining so absent until 4 November 1966 and for
absenting himself without proper authority on about 26 December 1966 and
remaining so absent until 21 January 1967.  The applicant was sentenced
to be confined at hard labor for 4 months; to be reduced to the lowest
enlisted pay grade; and to forfeit $65.00 per month, for 6 months.  Only
so much of the sentence that provided for his confinement at hard labor
for 4 months, his reduction to the lowest enlisted pay grade; and a
forfeiture of $60.00 per month, for 6 months, was approved and ordered
executed on 10 February 1967, but the execution of the sentence adjudging
confinement at hard labor for 4 months was suspended for 4 months.

7.  On 10 July 1967, the applicant's sentence to confinement for 4 months
was vacated.  The vacation of the sentence was announced in Special Court-
Martial Orders Number 592, Special Troops Regiment, Fort George G. Meade,
Maryland, dated 12 July 1967.

8.  On 20 July 1967, the applicant received a special court-martial.  He
was found guilty of absenting himself without proper authority on about 27
March 1967 and remaining so absent until 23 June 1967.  The applicant was
sentenced to be confined at hard labor for 5 months and to forfeit $25.00
per month, for 5 months. On 21 August 1967, the sentence was approved and
ordered duly executed.

9.  On 23 January 1968, the unexecuted sentence to confinement for 4 months
adjudged on 9 February 1967 and promulgated and suspended on 10 February
1967 (the suspension of the unexecuted portion of the sentence to
confinement at hard labor was vacated by Special Court Martial Order Number
592, dated 12 July 1967) was further suspended for four months, at which
time, unless the suspension was sooner vacated, the suspended portion of
the sentence would be remitted without further action.
10.  Between his tours of duty in Germany and in Vietnam, the applicant was
assigned to the US Army Overseas Replacement Station, Oakland, California.
He absented himself from that station and remained absent from 30 August
1968 to 9 September 1968.

11.  There is evidence the applicant received nonjudicial punishment under
the provisions of Article 15, of the Uniform Code of Military Justice
(UCMJ), on about 10 September 1968; however, a copy of the DA Form 2627,
Record of Proceedings Under Article 15, UCMJ, is not on file in his
records.  The evidence, Unit Order Number 150, US Army Personnel Center,
Oakland, California, dated 11 September 1968, shows he forfeited $25.00 pay
as a result of the non-judicial punishment.

12.  On 23 August 1969, the applicant received nonjudicial punishment under
the provisions of Article 15, of the UCMJ, for incapacitating himself for
the proper performance of his duties as a result of previous indulgence of
intoxicating liquor on 16 August 1969.  The imposed punishment was a
forfeiture of $40.00 pay.  The applicant did not appeal the punishment.

13.  On the applicant's return from Vietnam, on 10 September 1969, he was
assigned to Battery A, 2nd Battalion, 84th Artillery, Fort Carson,
Colorado.  He arrived at that location on 17 October 1969.

14.  On 7 December 1969 the applicant departed AWOL from his unit.  He
remained AWOL and was subsequently dropped from the rolls (DFR) of his
unit.  The evidence shows he returned to military control on 22 July 1974
at Fort Knox, Kentucky.

15. A copy of the applicant's entire "request for discharge packet" is not
on file in his records; however, a copy of three documents related to his
discharge are:  a copy of a 3rd Endorsement approving the applicant's
request for discharge, dated 23 August 1974; a copy of Special Orders
Number 182, Headquarters, US Army Armor Center and Fort Knox, Fort Knox,
Kentucky, dated 4 September 1974, which orders the applicant's discharge
from the Army with an undesirable discharge, with his service characterized
as under other than honorable conditions; and a copy of his DD Form 214.

16.  The applicant was discharged with an undesirable discharge, with his
service characterized as under other than honorable conditions, in the rank
and pay grade of Private, E-1, on 6 September 1974, under the provisions of
Army
Regulation (AR) 635-200, Chapter 10, for conduct triable by court-martial.
On the date of his discharge, the applicant had completed 2 years, 9
months, and 18 days net active service, and had accrued 467 days of time
lost due to AWOL and confinement, prior to his normal ETS (expiration of
his term of service), and 1,686 days time lost subsequent to his normal
ETS.

17.  Item 26 (Decorations, Medal, Badges, Commendations, Citations and
Campaign Ribbons Awarded or Authorized), of the applicant's DD Form 214
shows he was awarded the Vietnam Service Medal, with four bronze service
stars to denote his campaign credits and the Republic of Vietnam Campaign
Medal, with '60 Device.  Item 41, of the applicant's DA Form 20, Enlisted
Qualification Record, shows he was awarded the National Defense Service
Medal and two overseas service bars in addition to those Vietnam-service
related awards.  His record do not document any act of valor, significant
achievement, or service warranting special recognition.

18.  On 18 November 1975, the applicant was informed by the Army Discharge
Review Board (ADRB) he had been awarded a clemency discharge.  He was
provided a DD Form 215 to document this award of clemency.  In the notice
that was sent to him, he was advised he could apply to the ADRB for review
and possible change to his discharge.  He was provided the appropriate form
with instructions if he wished to apply.

19.  On 28 May 1976, the applicant applied to the ADRB for an upgrade of
his discharge to "at least one grade to general, under honorable
conditions."

20.  On 3 May 1977, the applicant was advised that after careful
consideration of his military records and all other available evidence, the
ADRB had determined he had been properly discharged.  Accordingly, he was
further advised that his request for a change in the type and nature of his
discharge had been denied.  He was told at the time he could apply to the
Army Board for the Correction of Military Records (ABCMR) for an upgrade of
his discharge since the ABCMR was not bound by the decision reached by the
ADRB.

21.  On 7 May 1982, the applicant, through counsel, made application to the
ABCMR for an upgrade of his discharge to honorable.

22.  On 30 August 1982, applicant's counsel requested return of the
application, without prejudice to further appeal.  On 22 September 1982,
the applicant's request for an upgrade of his discharge was returned to
counsel, without prejudice to further appeal.

23.  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 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.  At the time of the
applicant's discharge, an undesirable discharge normally was appropriate
for a Soldier who was discharged in lieu of trial by court-martial.
However, the separation authority could direct a general discharge if such
was merited by the Soldier's overall record during his enlistment.  An
honorable discharge was not authorized unless the Soldier's record was
otherwise so meritorious that any other characterization clearly would be
improper.

24.  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.

25.  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.

26.  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 that 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.  The applicant's contention that his discharge was not the result of
court-martial is correct; however, for the applicant to be able to
voluntarily request discharge for the good of the service to avoid trial by
court-martial, charges for violation of the UCMJ had to have been brought
against him.

2.  The evidence shows the applicant was discharged under the provisions of
AR 635-200, Chapter 10, conduct triable by court-martial.  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.

3.  Although the discharge "packet" that resulted from the applicant's
request for discharge, in lieu of trial by court-martial, is not available
for review by the Board, it appears that all requirements of law and
regulation were met and the rights of the applicant were fully protected
throughout the discharge process.  Government regularity in the discharge
process is therefore presumed.

4.  The characterization of service for this type of discharge was normally
under other than honorable conditions and the type of discharge normally
issued at the time of the applicant's discharge was an undesirable
discharge.  It is believed that the reason for discharge and the
characterization of service were both proper and equitable.

5.  The applicant's contention that he and a room full of individuals who
presumably were also awaiting discharge were told that in 10 years their
discharge would be upgraded has been considered; however, the Army does
not now have nor has it ever had a policy for the automatic upgrade of less
than honorable discharges.

6.  The evidence shows that despite the applicant's allegation that they
were not told they had only 15 years to apply for an upgrade of their
discharges, he was granted a clemency discharge and was provided the
appropriate forms with instructions, if he wished to apply to the ADRB for
an upgrade of his discharge.

7.  The evidence shows that the applicant did apply to the ADRB for an
upgrade of his discharge within its 15-year statute of limitations and on 3
May 1977, he was informed that his request for an upgrade of his discharge
had been denied.

8.  The evidence also shows the applicant applied to the ABCMR, through
counsel, for an upgrade of his discharge.  On 30 August 1982, applicant's
counsel requested return of this application, without prejudice, to further
appeal.  The application was returned to counsel on 22 September 1982.
9.  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 has failed to
submit evidence that would satisfy this requirement.

10.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 3 May 1977.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to this Board expired on 2 May 1980.  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

___PJ___  __EM____  ___DH__  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.




                                  _____Paul M. Smith________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060009568                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070501                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19740906                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 10                  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |144.0144                                |
|3.                      |144.6300                                |
|4.                      |144.7100                                |
|5.                      |                                        |
|6.                      |                                        |


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