RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 June 2007
      DOCKET NUMBER:  AR20060017219


      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. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Carmen Duncan                 |     |Chairperson          |
|     |Mr. Michael Flynn                 |     |Member               |
|     |Mr. Jeffrey Redmann               |     |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 under other than honorable
conditions be upgraded to an honorable discharge.

2.  The applicant states that when he went on leave in 1977, after serving
1 year and almost 4 months in the Army, he fell in love with a woman who
later became the mother of his son and he did not return to the Army.  He
states that he was young and no doubt foolish at that time.  He states that
when he was in the Army he put all of his efforts into training to be a
good man, and after basic training, he went to Fort Lee, Virginia, where he
went to quartermaster school and trained to be a stock clerk.  The
applicant goes on to state that people do learn from their mistakes and he
believes that he should not have to suffer for his past mistakes. He states
that he is a better man now and that he stays home and takes care of his
mother.  He concludes by stating that he is currently doing odd jobs to
support himself.

3.  The applicant provides in support of his application, copies of
documents that are maintained in his Official Military Personnel File and
statements from this mother and neighbor attesting to his good character
and requesting that careful consideration be given to his request for an
upgrade of his discharge.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 26 May 1977.  The application submitted in this case is
dated 30 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 21 October 1975, the applicant enlisted in the Indiana Army National
Guard in Indianapolis, Indiana, for 6 years, in the pay grade of E-1.  He
enlisted in the Regular Army (RA) on 8 February 1976.  He went on to
successfully


complete his basic combat training and he was promoted to the pay grade of
E-2 on 21 February 1976.

4.  The applicant was in advanced individual training when nonjudicial
punishment (NJP) was imposed against him on 3 March 1976, for leaving his
appointed place of duty.  His punishment consisted of a forfeiture of pay
in the amount of $40.00, 14 days of restriction and 14 days of extra duty.

5.  On 3 May 1976, the applicant absented himself without leave (AWOL) and
he remained absent in desertion until he was apprehended by civil
authorities and returned to military control on 30 November 1976.  The
records are void of any punishment that was imposed against him for being
AWOL.

6.  On 15 December 1976, NJP was imposed against the applicant for failure
to report to his prescribed place of duty.  His punishment consisted of 7
days of correctional custody.

7.  The applicant went AWOL again on 3 January 1977 and he remained absent
in desertion until he returned to military control on 24 May 1977.

8.  The facts and circumstances pertaining to the applicant's discharge are
not on file.  The Report of Separation, DD Form 214, indicates that he was
discharged on 26 May 1977, under other than honorable conditions, under the
provisions of Army Regulation 635-200, chapter 10, for the good of the
service in lieu of trial by court-martial.  He had completed 3 months and
16 days of total active service and he had approximately 349 days of lost
time due to AWOL.

9.  A review of the available records fails to show that the applicant ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that board'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
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, a discharge under
other than honorable conditions is normally considered appropriate.


DISCUSSION AND CONCLUSIONS:

1.   It appears that the type of discharge directed and the reasons
therefore were appropriate considering all the facts of the case.

2.  The applicant's contentions have been noted.  However, they are not
supported by the evidence of record nor are they sufficiently mitigating to
warrant the relief requested.  The Board notes he was over 20 years old
when he enlisted in the RA and went AWOL for the first time.

3.  The letters from the applicant's mother and neighbor attesting to his
good character have also been noted.  Nonetheless, the applicant had NJP
imposed against him twice and he was AWOL for approximately 349 days.
Considering his numerous acts of indiscipline and the seriousness of his
offenses, the type of discharge that he received appropriately reflects his
overall record of service and in the absence of evidence to the contrary,
it must be presumed that what the Army did in his case is correct.

4.  In order to justify correction of a military record the applicant must
show 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.  In view of the foregoing, there is no basis for granting the
applicant's request.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 May 1977; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 25 May 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

__CD ___  __MF ___  ___JR___  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.




                                  _____Carmen Duncan______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060017219                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070607                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19770526                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |CHAPTER 10                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  360  |114.0000/ADMINISTRATIVE DISCHARGE       |
|2.  689                 |144.7000/FOR THE GOOD OF THE SERVICE    |
|3.  780                 |144.7100/CONDT TRIABLE BY CM:  AWOL     |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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