RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 June 2007
      DOCKET NUMBER:  AR20070001309


      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 undesirable discharge be upgraded to a
general discharge.

2.  The applicant states, in a statement dated 11 January 2007, that he
enlisted and loved his training.  He was then sent to Fort George G. Meade,
MD and loved being in that area.  Everything was going fine until his
grandmother got sick.  He had been totally spoiled by his grandparents.  He
started to come apart at the seams, but then he started to settle in.  Most
of the guys he met were cool, but there were two who lived offpost.  He met
with them after lunch one day at one of their houses.  They then offered
him a chance to sell angel dust for them.  He told them no way, he wanted
nothing to do with it.  They forcefully told him to think about it, almost
like he had no choice.  He started to avoid them until one day they came to
the mess hall to get him.  He again told them he would not sell drugs for
them and he took off running.  He ran into the barracks, but he forgot to
take off his hat and he got caught and had to report to the first sergeant.

3.  The applicant states that the guys accused him of ratting on them even
though he had said nothing to anyone.  That night, after receiving an
Article 15 and a loss of pay, they approached him with a sword and said
that they would kill him and that because he knew what they were doing he
would have to be involved.  He called home, and found out his grandmother
was sick[er].  He bought a car from a friend, who told him to take the car
as long as he paid his friend when he got his [pay]check.  He left and went
home to see his grandmother.  He went back to Fort Meade that weekend
because it was payday, and he had to pay for the car.  Unfortunately, his
check was short because of the Article 15.  He went to his barracks and
found that his locker had been cleaned out.  All his uniforms and even his
personal property were gone.  He paid some of the money to his friend for
the car.  He states that anyway, coming out of the building he saw the two
guys, and he took off running.  He went back to New York.  After being
home, he decided to go to the police station and turn himself in and he was
sent to Fort Dix, NJ.  He felt so threatened for his life that he was not
thinking clearly.

4.  The applicant states that he wanted to stay in for 20 years, like his
cousin and others in his family.  Now, he has become an elder of his church
working with the youth of the country to create a better tomorrow.

5.  The applicant provides a diploma, dated 5 December 1974, from the
Atterbury, IN Job Corps Center; a certificate of completion, dated 15
November 1974, from the Atterbury, IN Job Corps Center; a certificate,
dated 15 November 1974, from the Atterbury, IN Job Corps Center; a Home
Improvement Contractor license; and his Undesirable Discharge Certificate.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 6 January 1977.  The application submitted in this case is
dated 11 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 was born on 9 April 1958.  He enlisted in the Regular
Army on 11 February 1976.  He completed basic training and advanced
individual training and was awarded military occupational specialty 64C
(Motor Transport Operator).

4.  On 20 July 1976, the applicant accepted non-judicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for two
specifications of failing to go to his appointed place of duty.

5.  In September 1976, the applicant accepted NJP under Article 15, UCMJ
for five specifications of failing to go to his appointed place of duty.

6.  A Fort Dix Personnel Control Facility Form 691 (Personnel Control
Facility Interview Sheet), dated 10 December 1976, shows that the applicant
stated he could not handle the discipline of his unit and that it got too
tense so he left.

7.  On 10 December 1976, court-martial charges were preferred against the
applicant charging him with being absent without leave (AWOL) from on or
about 18 October 1976 to on or about 5 December 1976.

8.  On 7 December 1976, the applicant completed a separation physical
examination and was found qualified for separation.

9.  On 14 December 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 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 elected not to submit a statement in his own
behalf.

10.  On 21 December 1976, the appropriate authority approved the request
and directed the applicant receive an Undesirable Discharge Certificate.

11.  On 6 January 1977, 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              9 months and 9 days of creditable active service and
had 48 days of lost time.

12.  Army Regulation 635-200 (Personnel Separations) 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 3-7b, 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 contentions have been carefully considered.  However,
it is noted that his statement at the time he returned to military control
did not mention the same facts and circumstances surrounding his discharge
that he now provides.  Since he had been gone from Fort Meade for 48 days
with evidently no further threats from those two Soldiers (at least he did
not mention at the time or currently that he received any further threats),
and since after he turned himself in he was sent to Fort Dix and not
returned to Fort Meade, his statement now that he felt so threatened for
his life that he was not thinking clearly is not entirely credible.

2.  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.

3.  The applicant’s good post-service conduct is commendable; however, it
is not a basis for upgrading of his discharge.  There is insufficient
evidence that would warrant granting the relief requested.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 January 1977; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on           5 January 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

__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                 |AR20070001309                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070619                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19770106                                |
|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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