RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 June 2007
      DOCKET NUMBER:  AR20070001182


      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:

|     |Ms. Barbara J. Ellis              |     |Chairperson          |
|     |Mr. Frank C. Jones                |     |Member               |
|     |Mr. Qawiy A. Sabree               |     |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 be upgraded.

2.  The applicant states that he made a bad mistake in his life and feels
that he did not have to receive a bad discharge.  He should not have to pay
for it the rest of his life.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 8 June 1978.  The application submitted in this case was
received in this office on 23 January 2007.

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 27 December 1976.  He
completed basic training and advanced individual training and was awarded
military occupational specialty 24C (Improved Hawk Firing Section
Mechanic).

4.  On 20 March 1978, court-martial charges were preferred against the
applicant charging him with being absent without leave (AWOL) from on or
about 30 August 1977 to on or about 12 March 1978.

5.  On 21 March 1978, the applicant completed a separation physical
examination and was found qualified for separation.

6.  On 25 March 1978, 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 by submitting this request for
discharge he was guilty of the charge against him or of a lesser included
offense.  He was advised of the effects of a discharge under other than
honorable conditions and that he might be deprived of many or all Army and
Veterans Administration benefits.  He submitted a statement in his own
behalf.  He stated, in effect, that he enlisted to learn a skill.  Also,
his lady had two children and no one but her to take care of them.  In
addition, his mother had seven children and no one but her (his mother) to
take care those children.  He, the applicant, was the eldest sibling.

7.  On 24 April 1978, the appropriate authority approved the request and
directed the applicant receive a discharge under other than honorable
conditions.

8.  On 8 June 1978, the applicant was discharged with a discharge 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 11 months of creditable active service and had
194 days of lost time.

9.  On 4 March 1980, the Army Discharge Review Board (ADRB) denied the
applicant's petition to upgrade his discharge.

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.
A discharge under other than honorable conditions is normally considered
appropriate.

11.  Army Regulation 635-200 governs the separation of enlisted personnel.
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.

12.  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.


13.  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 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 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 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, an upgrade of his discharge is not warranted.

2.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 4 March 1980.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to this Board expired on 3 March 1981.  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

__bje___  __fcj___  __qas___  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.




                                  __Barbara J. Ellis____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070001182                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070619                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19780608                                |
|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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