RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 April 2007
      DOCKET NUMBER:  AR20060014967


      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. William D. Powers             |     |Chairperson          |
|     |Mr. William F. Crain              |     |Member               |
|     |Mr. Dale E. DeBruler              |     |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 under other than honorable
conditions (UOTHC) be upgraded.

2.  The applicant states he wanted to stay in the Army.  He was given the
option to be transferred to Fort Benjamin Harrison, IN, but the captain at
Fort Knox, KY wanted him to go back and face a court-martial or get the
discharge.  He regrets his actions.  He has since become a Christian and
would like to be considered for an upgraded discharge.

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 12 July 1977.  The application submitted in this case is dated
10 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 enlisted in the Regular Army on 3 November 1975.  He
completed basic training and advanced individual training and was awarded
military occupational specialty 12B (Combat Engineer).  He was assigned to
Fort Knox, KY on 8 March 1976.

4.  On 20 September 1976, the applicant accepted nonjudicial punishment
(NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for two
specifications of failing to go to his appointed place of duty.

5.  On 16 February 1977, the applicant accepted NJP under Article 15, UCMJ
for three specifications of failing to go to his appointed place of duty.

6.  On 3 March 1977, the applicant accepted NJP under Article 15, UCMJ for
wrongfully possessing 1.0 ounces, more or less, of marijuana.
7.  The applicant departed absent without leave (AWOL) on or about 24 May
1977 and returned on or about 27 May 1977.  On 10 June 1977, charges were
preferred against him for this period of AWOL; however, the applicant had
departed AWOL again on or about 6 June 1977.

8.  On 7 July 1977, the applicant returned to military control at Fort
Benjamin Harrison, IN.

9.  On 12 July 1977, court-martial charges were preferred against the
applicant charging him with AWOL from on or about 6 June 1977 to on or
about 7 July 1977.

10.  On 12 July 1977, after consulting with legal counsel, the applicant
voluntarily requested a discharge under the provisions of Army Regulation
635-200, chapter 10 for the good of the service in lieu of trial by court-
martial.  The applicant was advised of the effects of a discharge UOTHC and
that he might be deprived of many or all Army and Veterans Administration
benefits.  He elected not to submit a statement in his own behalf.

11.  The action of the approval authority is not available.

12.  On 12 July 1977, the applicant was discharged with a discharge UOTHC,
in pay grade E-1, under the provisions of Army Regulation 635-200, chapter
10, for the good of the service in lieu of trial by court-martial.  He had
completed 1 year, 7 months, and 3 days of creditable active service.  His
DD Form 214 shows he had 31 days of lost time.

13.  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.
A discharge UOTHC is 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, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.

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 applicant’s voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, for the good of the service to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.  There is no indication that the
request was made under coercion or duress.  In the absence of the contrary
and in view of the applicant’s record of misconduct during his short period
of service, it appears the approval authority appropriately characterized
his service as UOTHC.

2.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 July 1977; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         11 July 1980.  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

__wdp___  __wfc___  __ded___  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.




                                  __William D. Powers___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060014967                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070426                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19770712                                |
|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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