RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 June 2007
      DOCKET NUMBER:  AR20060017033


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Jerome L. Pionk               |     |Member               |
|     |Ms. Jeanette B. McPherson         |     |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 undesirable discharge (UD)
be upgraded to a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, he was very young and made a mistake.
Since then, he has no criminal record and has been gainfully employed since
1989, and owns his own auto repair business.

3.  The applicant provides a copy of his separation document (DD Form 214)
in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 8 May 1972, the date of his discharge.  The application
submitted in this case is dated 27 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.  The applicant's record shows he enlisted in the Regular Army and
entered active duty on 19 June 1971.  He successfully completed basic
combat training at Fort Jackson, South Carolina, in September 1971 and was
assigned to Fort Gordon, Georgia, to attend advanced individual training
(AIT) for training in military occupational specialty (MOS) 31M (Radio
Relay Operator).

4.  On 22 September 1971, the applicant departed absent without leave
(AWOL) from his AIT unit.  He was dropped from the rolls of the
organization on 21 October 1971, and he remained away for 147 days until
returning to military control at Fort Bragg, North Carolina, on 15 February
1972.

5.  On 15 March 1972, a Charge Sheet (DD Form 459) was prepared preferring
a court-martial charge against the applicant for violating Article 86 of
the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about
22 September 1971 through on or about 16 February 1972.
6.  On 27 March 1972, the applicant consulted with legal counsel and was
advised of the basis to the contemplated trial by court-martial, the
maximum permissible punishment under the UCMJ, the possible effects of an
UOTHC discharge, and of the rights available to him.  Subsequent to
receiving this counseling, the applicant voluntarily requested discharge
for the good of the service in lieu of trial by court-martial.  In his
discharge request, the applicant acknowledged his understanding that he
could receive an UD and as a result be deprived of many or all Army
benefits, and that he could be ineligible for many or all benefits
administered by the Department of Veterans Affairs (VA).

7.  On 20 April 1972, the separation authority approved the applicant's
request for discharge, and directed he receive an UD.  On 8 May 1972, the
applicant was discharged accordingly.

8.  The separation document (DD Form 214) issued to the applicant upon his
discharge confirms he completed 5 months and 12 days of creditable active
military service, and had accrued 167 days of time lost.

9.  There is no indication that the applicant petitioned the Army Discharge
Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-
year statute of limitations.

10.  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 at
any time after the charges have been preferred, submit a request for
discharge for the good of the service in lieu of trial by court-martial.
An UOTHC discharge normally is appropriate for a Soldier who is discharged
in lieu of trial by court-martial.  However, the separation authority may
direct a general discharge (GD) if such is merited by the Soldier's overall
record during the current enlistment.  An honorable discharge is not
authorized unless the Soldier's record is otherwise so meritorious that any
other characterization clearly would be improper. At the time of the
applicant's discharge the regulation provided for the issuance of an UD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded
because he was young and made a mistake and based on his post service
conduct and employment record was carefully considered.  However, these
factors are not sufficiently mitigating to support granting the requested
relief.

2.  The applicant's record documents no acts of valor, significant
achievement, or service warranting special recognition.  The evidence of
record does confirm the applicant was charged with the commission of an
offense punishable under the UCMJ with a punitive discharge.  After
consulting with defense counsel, the applicant voluntarily requested
discharge from the Army in lieu of trial by court-martial.  In his request
for discharge, he admitted guilt to the charge against him, or of a lesser
included offense, that also authorized the imposition of a bad conduct or
dishonorable discharge.  All requirements of law and regulation were met
and that the rights of the applicant were fully protected throughout the
separation process.

3.  The evidence of record further shows that after being AWOL from his AIT
unit for 147 days, the applicant voluntarily requested discharge to avoid a

court-martial that could have resulted in his receiving a punitive
discharge.  The UD he received was normal and appropriate under the
regulatory guidance, and his overall record of short and undistinguished
service clearly did not support a general or honorable discharge at the
time, nor does it support an upgrade now.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 May 1972, the date of his discharge.
 Therefore, the time for him file a request for correction of any error or
injustice expired on 7 May 1975.  He failed to 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

___JEA__  __JLP___  __JBM__  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.




                                  _____James E. Anderholm___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060017033                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/06/26                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1972/05/08                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |In Lieu of C-M                          |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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