RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 May 2007
      DOCKET NUMBER:  AR20060016283


      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. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. Michael J. Flynn              |     |Member               |
|     |Ms. Rose M. Lys                   |     |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, that his discharge under honorable
conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he left his duty station to get
his son out of some trouble.  He came back because he had served in
Vietnam.  He adds that he was given a general discharge because of his
record, however, now he would like his discharge upgraded to an honorable
discharge.

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 31 October 1972, the date he was discharged from active
duty.  The application submitted in this case is dated 22 November 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.  On 4 January 1971, the applicant reenlisted in the Regular Army for a
period of 3 years, after serving 1 year, 6 months and 8 days of honorable
active service, which included service in the Republic of Vietnam.  The
applicant’s military occupational specialty was 94B (Cook).  The highest
grade he attained was pay grade E-4.

4.  On 11 October 1972, court-martial charges were preferred against the
applicant for being absent without leave (AWOL) from 5 July to 14 September
1972.

5.  On 12 October 1972, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation action, 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 acknowledged that 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.  He further indicated that he understood that he could encounter
substantial prejudice in civilian life by reason of a UD.  The applicant
submitted a statement in his own behalf.  He stated, in effect, that he
would like to receive a general discharge because he served three good
years in the Army.  He served 19 months of honorable service and received
the Army Commendation Medal.  He adds that he went AWOL on 5 July 1972,
because he believed that he was not progressing in the military service,
that he had been an E-4 from 10 May 1970 until he went AWOL and that was
the reason why he requested the general discharge.

6.  On 19 October 1972, the separation authority approved the applicant’s
request for discharge and directed that he be issued a General Discharge
Certificate.

7.  On 31 October 1972, the applicant was discharged.  The separation
document (DD Form 214) he was issued confirms he completed a total of
3 years, 2 months and 6 days of creditable active military service during
this enlistment and 74 days of time lost.  He was awarded the National
Defense Service Medal, the Vietnam Service Medal, the Army Commendation
Medal, three Overseas Service Bars and the Marksman Badge (M-14).

8.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel),
in effect at the time of the applicant's discharge, set 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.  Although an honorable or general discharge is
authorized, an undesirable discharge under other than honorable conditions
is normally considered appropriate.

9.  Army Regulation 635-200, paragraph 3-7b (Types of administrative
discharges/character of service), 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.
10.  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.  Whenever there is doubt, it is to be resolved in favor of
the individual.

11.  On 3 December 1977, the Army Discharge Review Board denied the
applicant's petition to upgrade his discharge.

12.  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
without merit.  The evidence of record shows that the discharge authority
determined the applicant’s record of service at that time did not warrant a
discharge under other than honorable conditions.  However, the discharge
authority also determined that the applicant's overall quality of service
did not meet the standards of acceptable conduct and performance of duty
for Army personnel meriting an honorable discharge.  Consequently, the
discharge authority granted the applicant a general under honorable
conditions discharge.  There is no evidence of record, and the applicant
provides insufficient evidence, to show that the character of his service
for the period under review is in error.  Therefore, the applicant is not
entitled to a fully honorable discharge.

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 legal counsel, the applicant voluntarily
requested discharge from the Army in lieu of trial by court-martial.  There
is no indication that the request was made under coercion or duress.  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 undistinguished service.

3.  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 3 December 1977.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 2 December 1980.  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

___RTD__  ___MJF _  ___RML_  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.




                                  ____Richard T. Dunbar____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/05/03                              |
|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. Schwartz                            |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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