RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 June 2007
      DOCKET NUMBER:  AR20070000303


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. William F. Crain              |     |Member               |
|     |Mr. Dean A. Camarella             |     |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 be upgraded.

2.  The applicant states “blood bad from cleanup” and “spinal cord bad
conditions from jumps.”  He states, in effect, that he needs veterans’
medical and educational benefits.  When he was on active duty, all he knew
and learned was how to kill the enemy and take care of his Army buddies.

3.  The applicant provides a Standard Form 180 (Request Pertaining to
Military Records) and a self-authored note, dated 16 December 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 24 November 1976.  The application submitted in this case is
dated               16 December 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 26 May 1972.  He
completed basic training and advanced individual training and was awarded
military occupational specialty11B (Light Weapons Infantryman).  He was
assigned to the 101st Airborne Division (Airmobile), Fort Campbell, KY.

4.  On 16 November 1972, the applicant accepted nonjudicial punishment
(NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for
absenting himself from his place of duty

5.  On 17 January 1973, the applicant was convicted, in accordance with his
plea, by a summary court-martial of being absent without leave (AWOL) from
on or about 12 December 1972 to on or about 11 January 1973.  His
punishment was a forfeiture of $75.00 pay per month for one month, a
reduction to pay grade E-2, and restriction for 14 days.

6.  On 29 January 1973, the applicant accepted NJP under Article 15, UCMJ
for breaking restriction.

7.  On 5 December 1973, the applicant departed AWOL.  On 11 June 1974, the
applicant was involved in a drug sale at the State Penal Farm, Memphis, TN.
 Authorities observed a white male (i.e., the applicant) jumping from the
fence into the farm and heading for the main cell block.  Upon being
commanded to halt, the applicant turned and started to climb back out.  A
warning shot was fired.  He failed to halt.  A second shot apparently hit
him, and he was confined in the Gaston Hospital (prison ward).  He may have
jumped bail.  A DA Form 4187 (Personnel Action) indicates he was
apprehended by the Federal Bureau of Investigation on 22 July 1976 in
Memphis, TN for being AWOL, and it was discovered he had civil charges
pending.

8.  On 28 September 1976, court-martial charges were preferred against the
applicant charging him with AWOL from on or about 5 December 1973 to on or
about 22 July 1976.

9.  On 1 October 1976, 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.  He acknowledged that he was making the request of his own free
will and had not been subjected to any coercion whatsoever by any person.
He acknowledged that by submitting the request for discharge that he was
guilty of the charge(s) against him or lesser included offenses(s)
contained therein which also authorized the imposition of a bad conduct or
dishonorable discharge.  He 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 submitted a statement in his own behalf,
wherein he stated he had been convicted of a felony and felt that he could
not serve his country after being charged (sic) with a felony.

10.  On 9 November 1976, the appropriate authority approved the request and
directed the applicant receive an undesirable discharge.

11.  On 24 November 1976, 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 1 year,
6 months, and 17 days of creditable active service and had 567 days of lost
time plus an additional 511 days of lost time subsequent to his normal
expiration of term of service.

12.  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.  A
discharge under other than honorable conditions is normally considered
appropriate.  However, at the time of the applicant's separation the
regulation provided for the issuance of an undesirable discharge.

13.  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.

14.  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.

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.  Considering the length of his
AWOL, the quality of his service prior to his last AWOL, and the acts of
misconduct he was involved in while he was AWOL, an upgrade of his
discharge is not warranted.

2.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 24 November 1976; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on   23 November 1979.  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

__jtm___  __wfc___  __dac___  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.




                                  __John T. Meixell_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070000303                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |200070628                               |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19761124                                |
|DISCHARGE AUTHORITY     |AR 635-200, ch 10                       |
|DISCHARGE REASON        |A70.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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