RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 April 2007
      DOCKET NUMBER:  AR20060014848


      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. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Mr. Gerald J. Purcell             |     |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 discharge be upgraded to an honorable
discharge.

2.  The applicant states, in effect, that he was not given proper advice.

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 18 December 1969, the date he was discharged from active
duty service.  The application submitted in this case is dated 13 October
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 that he enlisted in the Regular Army on
6 April 1966, for a period of 3 years.  He completed the required training
and was awarded military occupational specialty 62E (Heavy Equipment
Operator).  The highest grade he attained was pay grade E-4.

4.  On 5 August 1966, the applicant was convicted by a Special Court-
Martial (SPCM) of being absent without leave (AWOL) from 24 June to 19 July
1966.  He was sentenced to confinement at hard labor for 6 months (reduced
to 4 months) and a forfeiture of $55.00 pay per month for 6 months
(suspended).

5.  On 11 September 1968, the applicant was convicted by a SPCM of two
specifications of being AWOL from 25 February to 16 June 1968 and from 14
to 24 August 1968.  He was sentenced to confinement at hard labor for 3
months (suspended for 3 months) and a forfeiture of $73.00 pay per month
for 3 months.

6.  On 20 February 1969, the applicant was convicted by a SPCM of being
AWOL from 28 September 1968 to 1 February 1969.  He was sentenced to
confinement at hard labor for 6 months (suspended for 5 months) and a
forfeiture of $73.00 pay per month for 6 months.

7.  On 23 September 1969, court-martial charges were preferred against the
applicant of being AWOL from 16 April to 19 September 1969.

8.  On 25 September 1969, the applicant consulted with legal counsel and
was advised of the basis for the contemplated trial by court-martial, the
effects of an undesirable discharge (UD) and of the rights available to
him.  The applicant voluntarily requested discharge for the good of the
service, in lieu of trial by court-martial.  He also stated his
understanding 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.  He further indicated that he understood that
he could encounter substantial prejudice in civilian life by reason of an
UD.  The applicant did not submit a statement in his own behalf.  The
applicant was placed on excess leave pending approval of his request for
discharge.

9.  On 26 October 1969, a Report of Medical Examination found the applicant
fit for retention or separation from service.

10.  On 8 December 1969, the separation authority approved the applicant’s
request for discharge and directed that he be reduced to the lowest
enlistment grade and that he be issued an Undesirable Discharge
Certificate.

11.  On 13 February 1970, the applicant was discharged.  The separation
document (DD Form 214) he was issued confirms he completed 2 years,
4 months, and 5 days of creditable active military service and accrued 452
days of time lost.

12.  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.
An UD is normally considered appropriate.

13.  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.

14.  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.

15.  On 13 January 1974, the Army Discharge Review Board denied the
applicant's petition to upgrade his discharge.

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered and found to be
insufficient in merit.  Therefore, given the circumstances in this case and
his overall undistinguished record of service, there is insufficient
evidence to support his request at this time.

2.  The evidence of record confirms that the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, the applicant voluntarily
requested discharge from the Army in lieu of trial by court-martial.  All
requirements of law and regulation were met, the rights of the applicant
were fully protected throughout the separation process, and his discharge
accurately reflects his overall record of short and undistinguished
service.

3.  Therefore, 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.

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 13 January 1974.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 12 January 1977.  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

___JEV__  ___PHM _  ___GJP_  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. Vick______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/04/24                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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