RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 May 2007
      DOCKET NUMBER:  AR20060015410


      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:

|     |Ms. Yolanda Maldonado             |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |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 undesirable discharge be upgraded to
general under honorable conditions.

2.  The applicant states, in a DD Form 293 (Application for the Review of
Discharge from the Armed Forces of the United States), that he has very
poor vision and was unable to get to the infirmary to even get glasses.
Therefore, he could not keep up with the rifle range and could not see well
enough to train correctly.

3.  The applicant also states that his attorney during the Army Discharge
Review Board (ADRB) hearing misled him by telling him he would receive a
general discharge within 90 days.  About 75 days later, he received a
letter saying the ADRB denied his request for an upgrade.

4.  The applicant provides a DD Form 293.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 4 December 1973.  The application submitted in this case is
dated 22 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 was born on 10 November 1952.  He enlisted in the Regular
Army on 4 December 1972.  He did not complete basic training.

4.  On 25 October 1973, the applicant completed a separation physical
examination and was found qualified for separation.

5.  Court-martial charges were preferred against the applicant charging him
with being absent without leave (AWOL) from on or about 4 January 1973 to
on or about 29 June 1973 and from on or about 16 July 1973 to on or about 5
October 1973.
6.  On 30 October 1973, 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 an undesirable
discharge and that he might be deprived of many or all Army and Veterans
Administration benefits.  He also understood that he could expect to
encounter substantial prejudice in civilian life by reason of an
undesirable discharge.  He elected not to submit a statement in his own
behalf.

7.  On 27 November 1973, the appropriate authority approved the request and
directed the applicant be furnished an Undesirable Discharge Certificate.

8.  On 4 December 1973, the applicant was discharged with an undesirable
discharge and a characterization of service of under other than honorable
conditions, in pay grade E-1, under the provisions of Army Regulation 635-
200, chapter 10, discharge in lieu of trial by court-martial.  He had
completed              3 months and 4 days of creditable active service and
had 267 days of lost time.

9.  On 14 June 1976, the applicant appeared before the ADRB.  He testified
that he went AWOL because his mother got sick and no one else was home to
help her.  The ADRB denied the applicant's petition to upgrade his
discharge.

10.  On 6 August 1981, the ADRB reconsidered the applicant’s case and again
denied his petition to upgrade his discharge.

11.  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.

12.  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.

13.  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 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 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 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.

2.    The type of discharge issued to the applicant was appropriate
considering his two lengthy periods of AWOL.

3.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 6 August 1981.  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 August 1984.  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

__ym____  __lmd___  __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.




                                  __Yolanda Maldonado___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060015410                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070515                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19731204                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |A70.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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