RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 March 2007
      DOCKET NUMBER:  AR20060012702


      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      |
|     |Ms. Loretta D. Gulley             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. David K. Haasenritter         |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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. The application submitted in this case is dated 27 August 2006.

2.  The applicant states, in effect, that he wants to apply for the
Department of Housing, Urban Development’s (HUD) Section 8 housing
assistance program.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 15 June 1973, the date of his discharge from active duty.
 The application submitted in this case is dated 27 August 2006.

2.  The applicant was inducted into the Army of the United States on 26 May
1971 for a period of 2 years.  He did not complete the required training;
therefore, he retained Military Occupational Specialty (MOS) 00B (trainee).
 The highest rank he attained while serving on active duty was Private
(PVT), pay grade E-1.

3.  The applicant's record documents no acts of valor, significant
achievement or service warranting special recognition.

4.  The applicant’s military record reveals a disciplinary history that
includes his acceptance of nonjudicial punishment for being absent without
official leave (AWOL) from 26 July 1971 through 12 September 1971.  His
punishment included a reduction to pay grade E-1 and forfeiture of $35.00
pay.

5.  On 2 May 1973, charges were preferred against the applicant for being
AWOL from 26 October 1971 through 30 April 1973.

6.  On 10 May 1973, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
maximum permissible punishment authorized under the UCMJ, the possible
effects of an undesirable discharge, 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.

7.  In his request for discharge, the applicant acknowledged that a court-
martial could, upon a finding of guilty, sentence him to a bad conduct or
dishonorable discharge.  He further acknowledged that he understood that if
his discharge request was approved, he could be deprived of many or all
Army benefits, that he could be ineligible for many or all benefits
administered by the Department of Veterans Affairs (VA), and that he could
be deprived of his rights and benefits as a veteran under both Federal and
State law.

8.  On 10 May 1973, the separation authority approved the applicant’s
request for discharge and directed that he receive an Undesirable Discharge
Certificate.  On 15 June 1973, the applicant was discharged accordingly.
The DD Form 214 he was issued confirms he completed a total of 3 months and
6 days of creditable active military service and that he accrued 600 days
of time lost due to AWOL.

9.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge within its 15-year statute of
limitations.

10.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-
martial.  An undesirable discharge is normally considered appropriate.

11.  Army Regulation 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 (emphasis added), 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.

12.  Army Regulation 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 the Soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded so he can
apply for the Section 8 housing assistance program.
2.  The evidence of record shows that the applicant requested discharge in
lieu of trial by court-martial.

3.  Based on his disciplinary record, the applicant's service clearly does
not meet the standards of acceptable conduct and performance of duty for
Army personnel.  Therefore, he is not entitled to an honorable or general
discharge.

4.  The evidence of record confirms that all requirements of law and
regulation were met and the applicant’s rights were fully protected
throughout the separation process.  The record further shows the
applicant’s discharge accurately reflects his overall record of
undistinguished service.

5.  In order to justify correction of a military record the applicant must
satisfactorily show, or it must otherwise satisfactorily appear, that the
record is in error or unjust.  The applicant has failed to submit
sufficient evidence that would satisfy this requirement.

6.  The ABCMR does not upgrade the characterization of a Soldier’s
discharge so that he may obtain benefits administered by the Department of
Housing, Urban Development’s Section 8 program.  A discharge upgrade must
be supported by proof or evidence that the Soldier’s service
characterization was unjust, incorrect, and should be upgraded as a matter
of fairness and equity.  The applicant has provided insufficient evidence
to merit relief by the ABCMR.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 June 1973.  Therefore, the time for
him to file a request for correction on any error or injustice expired on
14 June 1976.  However, he did not file within the 3-year statute of
limitations 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

__KAN __  __DKH___  __LMD__  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 appear in the interest of justice to
excuse the applicant’s failure to timely file this application within the 3-
year statue of limitations prescribed by law.  Therefore, this insufficient
basis to waive the statue of limitations for timely filing or for
correction of the records of the individual concerned.




                                        _  Kathleen A. Newman      ___
                                            CHAIRPERSON





                                    INDEX

|CASE ID                 |AR20060012702                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/03/20                              |
|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. SCHWARTZ                            |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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