RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 April 2007
      DOCKET NUMBER:  AR20060013901


      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      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Curtis L. Greenway            |     |Chairperson          |
|     |Mr. Michael J. Flynn              |     |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 that his undesirable discharge be upgraded to
general under honorable conditions.

2.  The applicant states he feels he tried to rectify his situation by
turning himself in to the authorities at Fort Knox, KY, but they did not
accept him at the time.  He was trying to do the right thing.  They both
had a duty.  He did not fulfill his said duties but neither did the person
who sent him away.

3.  The applicant provides his DD Form 214 (Report of Separation from
Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 3 December 1974.  The application submitted in this case is
dated                15 September 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 22 January 1973.  He
completed basic combat training and advanced individual training and was
awarded military occupational specialty 11B (Light Weapons Infantrymen).

4.  On 29 August 1974, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice for being absent without leave
(AWOL) from on or about 21 July to on or about 25 August 1974.

5.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he
departed AWOL on 31 August 1974.  It shows he was apprehended by civil
authorities on 7 September 1974 for driving without a license.

6.  One DA Form 3836 (Notice of Return of US Army Member from Unauthorized
Absence), distribution made on 1 November 1974, shows the applicant
surrendered to military authorities on 18 October 1974.  Another DA Form
3836, distribution made on 12 November 1974, shows he was apprehended by
civil authorities and returned to military control on 16 October 1974.  His
DA Form   20 shows he was returned to military control on 13 October 1974.

7.  The court-martial charges and the discharge packet are not available.

8.  On 22 October 1974, the applicant completed a separation physical and
was found qualified for separation.

9.  On 3 December 1974, the applicant was discharged, in pay grade E-1,
under the provisions of Army Regulation 635-200, chapter 10, for the good
of the service with an undesirable discharge.  He had completed 1 year, 7
months, and 24 days of creditable active service and had about 79 days of
lost time.

10.  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
submit a request for discharge for the good of the service in lieu of trial
by court-martial.  The request may be submitted at any time after charges
have been preferred and must include the individual’s admission of guilt.
At the time, an undesirable discharge was normally considered appropriate.

11.  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.  In the absence of evidence to the contrary, it is presumed that the
applicant’s discharge proceedings were conducted in accordance with law and
regulations applicable at the time.

2.  The applicant provides no evidence to show he tried to turn himself in
to the authorities at Fort Knox, KY, but they did not accept him at the
time.  In any case, he was separated after his second period of AWOL, his
first period of AWOL being for more than 30 days.  It does not appear that
with a record of two AWOLs that his military record was sufficiently
meritorious to warrant the relief requested.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 3 December 1974; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on     2 December 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

__clg___  __mjf___  __eem___  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.




                                  __Curtis L. Greenway__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060013901                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070412                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19741203                                |
|DISCHARGE AUTHORITY     |AR 635-200, ch 10                       |
|DISCHARGE REASON        |A70.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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