RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 August 2007
      DOCKET NUMBER:  AR20070001357


      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             |
|     |Ms. Loretta D. Gulley             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Michael J. Flynn              |     |Chairperson          |
|     |Mr. Larry W. Racster              |     |Member               |
|     |Mr. Donald W. Steenfott           |     |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 Under Other Than Honorable Conditions
(UOTHC) discharge be upgraded.

2.  The applicant states, in effect, that his discharge should be upgraded
because he had no previous problems while in the Army and that the
prejudice the first sergeant showed him was unfair.

3.  The applicant provides two DD Form 214(s) (Armed Forces of the United
States Report of Transfer or Discharge). 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 23 May 1972, the date of his release from active duty.
The application submitted in this case is dated 25 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 5 September 1968, for a
period of three years.  He completed the required training and was awarded
military occupational specialty 11B (Light Weapon Infantryman).  The
highest rank he attained while serving on active duty was Private (E-2).

4.  He was discharged on 18 May 1969, for the purpose of immediate
reenlistment.  On 19 May 1969, he reenlisted in the Regular Army for a 3
year period of service.  He continued to served in MOS 11B (Light Weapons
Infantryman).

5.  The applicant's record documents no acts of valor, significant
achievement or service warranting special recognition.

6.  On 2 June 1970, the applicant accepted nonjudicial punishment (NJP) for
failure to go to his prescribed place of duty at the appointed time.  His
imposed punishment was a reduction in grade to Private First Class (PFC),
2 hours extra duty for 14 days to run concurrently, and to be restricted to
the battery area for 14 days.

7.  On 9 May 1972, charges were preferred against the applicant for being
absent without leave (AWOL) from 13 July 1970 to 22 April 1972.

8.  On 15 May 1972, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
maximum permissible punishment authorized under the UCMJ, the possible
effects of an under other than honorable conditions discharge, and of the
procedures and rights that were available to him.  Subsequent to receiving
this legal counsel, the applicant voluntarily requested discharge for the
good of the service in lieu of trial by court-martial.  The applicant
indicated that he would be submitting a statement on his behalf; however,
there are no statements in the available discharge facts and circumstances.

9.  In his request for discharge, the applicant indicated that he
understood that by requesting discharge, he was admitting guilt to the
charge against him, or of a lesser included offense, that also authorized
the imposition of a bad conduct or dishonorable discharge.  He further
acknowledged he understood that if his discharge request was approved, he
could be deprived of many or all Army benefits, that he could be ineligible
for many or all benefits administered by the Department of Veterans Affairs
(VA), and that he could be deprived of his rights and benefits as a veteran
under both Federal and State law.  The applicant also declined a separation
physical examination.

10.  On 18 May 1972, the separation authority directed that the applicant
be separated under the provisions of paragraph 10, Army Regulation 635-200,
for the good of the Army and that he receive Undesirable Discharge
Certificate.  On 23 May 1972, the applicant was discharged accordingly.
The DD Form 214 (Report of Separation From Active Duty) issued to him at
the time, confirms the applicant completed a total of 1 year, 11 months,
and 12 days of creditable active military service with 648 days of lost
time due to AWOL.

11.  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, 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.

12.  On 1 August 1975 the Army Discharge Review Board denied the
applicant's petition for an upgrade his discharge.

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 Army Discharge Review Board (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
Army Board for Correction of Military Records (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 contention of the applicant was carefully considered and found to
be without merit.

2.  The evidence of record shows that the applicant accepted discharge in
lieu of court martial.

3.  Based on his disciplinary record, the applicant's service clearly does
not meet the standards of acceptable conduct and performance of duty for
Army personnel.  Therefore, he is not entitled to an honorable or general
discharge.

4.  The evidence of record confirms that all requirements of law and
regulation were met and the applicant’s rights were fully protected
throughout the separation process.  The record further shows the
applicant’s discharge accurately reflects his overall record of
undistinguished service.

5.  In order to justify correction of a military record the applicant must
satisfactorily show, or it must otherwise satisfactorily appear, that the
record is in error or unjust.  The applicant has failed to submit
sufficient evidence that would satisfy this requirement.
6.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 1 August 1975.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 31 July 1978.  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

__MJF___  ___LWR_  ___DWS_  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.




                                  ____  Michael J. Flynn_____
                                            CHAIRPERSON







                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/08/14                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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