RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 March 2007
      DOCKET NUMBER:  AR20060011989


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Scott W. Faught               |     |Member               |
|     |Mr. Roland S. Venable             |     |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, an upgrade of his undesirable
discharge (UD).

2.  The applicant states, in effect, he was drafted against his will in
1969, and served overseas in Korea for 12 months, and he thinks he deserves
a better discharge.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 14 December 1971, the date of his final discharge.  The
application submitted in this case is dated 9 August 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 was inducted into the Army and entered
active duty 5 February 1969.  He was trained in, awarded, and served in
military occupational specialty (MOS) 36K (Field Wireman), and the highest
rank he attained while serving on active duty was specialist four (SP4).

4.  The applicant's Enlisted Qualification Record (DA Form 20) shows he
served overseas in Korea from 5 July 1969 through 23 May 1970, and that he
earned the Armed Forces Expeditionary Medal for his service in Korea.  Item
33 (Appointments and Reductions) shows that he was reduced from SP4 to
private first class (PFC) for cause on 10 January 1970.  Item 44 (Time
Lost) shows he accrued a total of 472 days of time lost due to being absent
without leave (AWOL) on five separate occasions between 5 January 1970 and
2 November 1971 and one 23-day period of confinement from 10 November
through
2 December 1971.

5.  The applicant's record documents no acts of valor, significant
achievement, or service warranting special recognition.  It does show that
he accepted non-judicial punishment under the provisions of Article 15 of
the Uniform Code of Military Justice (UCMJ) on 10 January 1970, for being
AWOL from 5 through
6 January 1970.  His punishment for this offense was a reduction to PFC and

14 days of restriction and extra duty.

6.  On 17 November 1971, a Charge Sheet (DD Form 458) was prepared
preferring a court-martial charge against the applicant for two
specifications of violating Article 86 of the UCMJ by being AWOL from on or
about 1 February through on or about 27 February 1971; and from on or about
25 February through on or about 3 November 1971.

7.  The applicant's record is void of a separation packet containing all
the facts and circumstances surrounding his separation processing.  The
record does contain a separation document (DD Form 214) that confirms on 14
December 1971, he was separated under the provisions of chapter 10, Army
Regulation 635-200, for the good of the service in lieu of trial by court-
martial, and that he received an UD discharge.  The DD Form 214 also shows
he completed a total of 1 year, 6 months, and 26 days of creditable active
military service and that he accrued 472 days of time lost due to AWOL and
confinement.

8.  There is no indication that the applicant applied to the Army Discharge
Review Board (ADRB) for an upgrade of his discharge within the ADRB’s 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 UD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he deserves a better discharge due to
the fact he was involuntarily inducted into the Army, and because he
completed an overseas tour of duty in Korea was carefully considered.
However, these factors are not sufficiently mitigating to support granting
the requested relief.

2.  The available evidence does not include a separation packet that
contains the all the specific facts and circumstances surrounding the
applicant’s final discharge processing.  However, it does include a
properly constituted DD Form 214 that identifies the reason and
characterization of the applicant’s final discharge.  Therefore, Government
regularity in the discharge process is presumed.

3.  The applicant’s separation document confirms he was discharged under
 the provisions of chapter 10, Army Regulation 635-200, for the good of the
service, in lieu of trial by court-martial.  In connection with such a
discharge,
he was charged with the commission of an offense punishable with a punitive
discharge under the UCMJ.  Procedurally, he was required to consult with
defense counsel, and to voluntarily request separation from the Army in
lieu
of trial by court-martial.  In doing so, he would have admitted guilt to
the stipulated offense(s) under the UCMJ that authorized the imposition of
a punitive discharge.  In the absence of information to the contrary, it is
concluded that all requirements of law and regulation were met and the
rights of the applicant were fully protected throughout the separation
process.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 December 1971, the date of his
discharge.  Therefore, the time for him to file a request for correction of
any error or injustice expired on 13 December 1974.  He failed to 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

___JEA__  __SWF__  __RSV __  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                 |AR20060011989                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/03/06                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1971/12/14                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |In Lieu of C-M                          |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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