RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 April 2007
      DOCKET NUMBER:  AR20060013972


      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:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. David K. Haasenritter         |     |Member               |
|     |Mr. John G. Heck                  |     |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.

2.  The applicant states, in effect, that his wife was in Korea at the time
of the incident and that the punishment he received was too harsh.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 12 September 1973, the date of his discharge from active
duty.  The application submitted in this case is dated 20 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 6 October 1972, for a
period of
3 years.  He completed the required training and was awarded military
occupational specialty 13A (Field Artillery Basic).  The highest rank he
attained while serving on active duty was Private First Class (PV2), pay
grade E-2.

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

5.  On 11 April 1973, the applicant accepted nonjudicial punishment (NJP)
for failing to go to his appointed place of duty.  His imposed punishment
was a forfeiture of $25.00 pay and 14 days restriction to Camp Stanley.

6.  The applicant’s also accepted NJP on 17 July 1973 for failing to obey a
lawful written order issued by a General Officer to return to the compound
at the prescribed time, which he failed to do on 12 July 1973 and 13 July
1973.  His punishment included forfeiture of $50.00 pay (suspended for 60
days), restriction to the confines of Camp Essayons for 14 days (11 days
suspended for 60 days),
and extra duty for 14 days.  On 6 August 1973, the suspension of punishment
of forfeiture of $50.00 pay and restriction to the confines of Camp
Essayons was vacated.

7.  On 6 August 1973, special court-martial charges were preferred against
the applicant for one specification of disrespect towards an officer, two
specifications of disobeying a lawful command from an officer, two
specifications of assaulting an officer, and one specification of
communicating a threat to an officer.

8.  On 23 August 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 a discharge under other than honorable conditions, 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.

9.  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 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.

10.  On 30 August 1973, the separation authority approved the applicant’s
request for discharge and directed that he receive an Undesirable Discharge
Certificate.  On 12 September 1973, the applicant was discharged
accordingly.  The DD Form 214 he was issued confirms he completed a total
of 11 months and 7 days of creditable active military.

11.  On 6 May 1982, the Army Discharge Review Board denied the applicant's
petition for an upgrade his discharge.

12.  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 Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the 3 year limit on filing to the
Army Board for Correction of Military Records (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.

13.  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.  At the time, an undesirable discharge was normally considered
appropriate.

14.  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.

15.  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 contention of the applicant was carefully considered and found to
be insufficient in merit.

2.  The evidence of record shows that the applicant requested a 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.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 6 May 1982.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to this Board expired on 5 May 1985.  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

____JS__  ___DKH _  ___JGH _  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 Slone______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060013972                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/04/19                              |
|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.                      |                                        |


-----------------------
[pic]