RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 May 2007
      DOCKET NUMBER:  AR20060015479


      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. Paul M. Smith                 |     |Chairperson          |
|     |Mr. David K. Haasenritter         |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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.

2.  The applicant states that at that time in his life he did not feel he
was competent to make such a life-changing decision.  He went to Fort Sill,
OK seeking medical treatment for alcohol and drug problems.  Instead of
getting help, he was discharged under a chapter 13 (sic), which basically
ruined his life.  If he had gotten some sort of treatment he would never
have accepted a chapter 13 no matter what the consequences.  He has battled
drug and alcohol problems since his entry into active duty.  Now he is
battling the problems associated with years of abuse.

3.  The applicant provides a VA Form 21-4138 (Statement in Support of
Claim).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 4 November 1974.  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 4 November 1974.  He
completed basic training and advanced individual training and was awarded
military occupational specialty 11E (Armor Crewman).  He was assigned to
Fort Hood, TX on or about 7 April 2005.

4.  On 5 June 1975, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for absenting
himself from his unit.

5.  On 24 July 1975, the applicant accepted NJP under Article 15, UCMJ for
being absent without leave (AWOL) from on or about 8 July to on or about
    15 July 1975.

6.  On 16 October 1975, the applicant accepted NJP under Article 15, UCMJ
for absenting himself from his appointed place of duty.

7.  On 15 December 1975, the applicant accepted NJP under Article 15, UCMJ
for being AWOL from on or about 3 December to on or about 7 December 1975.

8.  On 29 February 1976, the applicant was admitted to a civilian hospital
suffering from a drug overdose.

9.  The applicant departed AWOL on 16 March 1976.  He apparently returned
to military control at Fort Sill, OK on 7 October 1977.

10.  On 11 October 1977, the applicant completed a separation physical
examination.  He indicated he was in poor physical and mental health and
had alcohol and drug problems.  He was found qualified for separation.

11.  On 14 October 1977, court-martial charges were preferred against the
applicant charging him with being AWOL from on or about 16 March 1976 to on
or about 7 October 1977.

12.  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 under other than
honorable conditions 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.

13.  On 28 October 1977, the appropriate authority approved the applicant’s
request and directed the applicant be furnished an Under Other than
Honorable Conditions Discharge Certificate.

14.  On 4 November 1977, the applicant was separated with a discharge under
other than honorable conditions, in pay grade E-1, under the provisions of
Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He
had completed 1 year, 4 months, and 24 days of creditable active service
and had 585 days of lost time.

15.  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 under other than honorable conditions is normally considered
appropriate.

16.  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.

17.  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.

18.  Public Law 95-126, dated 8 October 1977, statutorily barred Department
of Veterans Affairs benefits for AWOLs greater than 180 days as well as for
conscientious objectors.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he went to Fort Sill, OK seeking
medical treatment for alcohol and drug problems is noted.  However, he
could have sought the same treatment at Fort Hood, TX instead of going
AWOL.

2.  The applicant’s administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.  Considering his lengthy
AWOL and previous misconduct, the type of discharge he was given was
appropriate.

3.  In addition, it appears Public Law 95-126 would statutorily bar the
applicant from receiving Department of Veterans Affairs benefits (since his
AWOL was for more than 180 days) even if his discharge were to be upgraded.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 4 November 1977; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on      3 November 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

__pms___  __dkh___  __eem___  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.




                                  ____Paul M. Smith_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060015479                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070501                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19771104                                |
|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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