RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 May 2007
      DOCKET NUMBER:  AR20060015399


      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. Linda D. Simmons              |     |Chairperson           |
|     |Mr. Jerome L. Pionk               |     |Member                |
|     |Mr. Eddie L. Smoot                |     |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, upgrade of his undesirable
discharge.

2.  The applicant states, in effect, that he was told that if he accepted a
discharge, it would be a “general” under honorable conditions discharge;
instead it was an undesirable discharge for the good of the service.

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 28 November 1972, the date of his discharge from active
duty.  The application submitted in this case is dated 18 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 31 August 1971, for a
period of
3 years.  He completed the required training and was awarded military
occupational specialty 94B (Cook).  The highest rank he attained while
serving on active duty was Private (PV2), pay grade E-2.

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

5.  On 23 January 1972, the applicant accepted nonjudicial punishment (NJP)
for disobeying a lawful order.  His imposed punishment was a forfeiture of
$25.00 pay and 7 days correctional custody, suspended for 30 days.  The
suspension of forfeiture was vacated on 14 February 1972.

6.  On 30 June 1972, the applicant was charged with breaking and entering
by the civilian authorities.  The applicant pled guilty and was sentenced
to one to fifteen years at the Ohio State Reformatory.  The sentence was
suspended and the applicant was placed on indefinite probation.
7.  On 26 July 1972, 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.

8.  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.

9.  On 26 July 1972, the separation authority approved the applicant’s
request for discharge and directed that he receive an Undesirable Discharge
Certificate.  On 28 November 1972, the applicant was discharged
accordingly.  The DD Form 214 he was issued confirms he completed a total
of 10 months and 28 days of creditable active military and 122 days lost
time.

10.  On 20 July 1976, the Army Discharge Review Board denied the
applicant's petition for an upgrade his discharge.

11.  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.

12.  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.

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.  Whenever there is doubt, it is to be resolved in favor of
the individual.

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.

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 20 July 1976.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 19 July 1979.  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

___LDS__  ___JLP__  ___ELS _  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.




                                  ____Linda D. Simmons___
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060015399                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/05/08                              |
|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. SCWARTZ                             |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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