RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 July 2007
      DOCKET NUMBER:  AR20070000700


      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. James E. Anderholm            |     |Chairperson          |
|     |Mr. Jose A. Martinez              |     |Member               |
|     |Mr. William F. Crain              |     |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 undesirable discharge be upgraded to a
general discharge.

2.  The applicant states that he agreed to a court-martial; however, he was
brought papers to sign for a chapter 10, for the good of the service
discharge.  He chose a court-martial hearing hoping to get reinstated and
redeem himself after he went absent without leave (AWOL).  He was told that
if he signed a chapter 10 after 6 months it would be [upgraded to] a
general discharge.

3.  The applicant provides a DD Form 293 (Application for the Review of
Discharge from the Armed Forces of the United States).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 19 May 1976.  The application submitted in this case is dated
24 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 6 February 1976.  He
departed AWOL on 17 February 1976.

4.  On 8 April 1976 court-martial charges were preferred against the
applicant charging him with being AWOL from on or about 17 February 1976 to
on or about 6 April 1976.

5.  On 12 April 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 stated that he was making the request of his own free will and
had not been subjected to any coercion whatsoever by any person.  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 and that
he might expect to encounter substantial prejudice in civilian life because
of an undesirable discharge.  He submitted no statement in his own behalf

6.  In response to preprinted questions addressed to the commanding
general, the applicant stated he was making the following statements
voluntarily, knowingly, and of his own free will:  He stated (A) he could
not adjust to the Army; (B) he had no personal assessment of his
rehabilitation potential; and (C) he would accept an undesirable discharge.
 He also indicated he waived the    72-hour waiting period.  The statement
was signed by the applicant and his Judge Advocate General’s Corps counsel.

7.  On 13 April 1976, the applicant completed a separation physical and was
found qualified for separation.

8.  On 26 April 1976, the appropriate authority approved the applicant’s
request and directed he receive an undesirable discharge.

9.  On 19 May 1976, the applicant was discharged, in pay grade E-1, under
the provisions of Army Regulation 635-200, chapter 10, for the good of the
service with an undesirable discharge and a characterization of service of
under other than honorable conditions.  He had completed 1 month and 26
days of creditable active service and had 48 days of lost time.

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.
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.
However, at the time of the applicant's separation the regulation provided
for the issuance of an undesirable discharge.

11.  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.

12.  The U. S. Army does not have, nor has it ever had, a policy to
automatically upgrade discharges.  Each case is decided on its own merits
when an applicant requests a change in discharge.  Changes may be warranted
if the Board determines that the characterization of service or the reason
for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended that he had agreed to a court-martial, but then
he was brought papers to sign for a chapter 10 discharge.

2.  There is no evidence of record and the applicant provided no evidence
to show he agreed to accept a court-martial.  Even if he had initially
agreed to accept a court-martial, however, the evidence of record shows
that he voluntarily requested separation under the provisions of Army
Regulation 635-200, chapter 10, for the good of the service to avoid trial
by court-martial.  His request was administratively correct and in
conformance with applicable regulations.  There is no indication that the
request was made under coercion or duress, and he specifically acknowledged
that it was not made under coercion whatsoever by any person.

3.  Considering the brevity of his service, to presume that the applicant
could have “redeemed” himself had he been tried by court-martial and
retained in the Army is purely speculative.  There is insufficient evidence
which would warrant granting the relief requested.

4.   Records show the applicant should have discovered the alleged error or
justice now under consideration on 19 May 1976; therefore, the time for the
applicant to file a request for correction of any error or injustice
expired on         18 May 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

__jea___  __jam___  __wfc___  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                 |AR20070000700                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070712                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19760519                                |
|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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