RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        30 August 2007
      DOCKET NUMBER:  AR20070002433


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Thomas M. Ray’                |     |Member               |
|     |Mr. Gerald J. Purcell             |     |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 undesirable discharge (UD)
be upgraded to a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, he is 54 years old and had a stroke
about three years ago.  He is requesting his UD be upgraded to a GD so he
can receive some of his benefits from the Department of Veterans Affairs
(VA).  He states he entered the Army when he was 17 because he wanted to
serve his country and to better his life.  He was excited to be a part of
the Army at first because he was enjoying what he was doing, which was
being a military policeman (MP); however, he became discouraged when he was
reassigned as a mechanic.  He states he was young and immature, and this
change was something he could not handle.  He states that when he submitted
his request for discharge for the good of the service, he really did not
know what he was doing and how it would hurt him later in life.  He states
that he now regrets his decision to request discharge.  He claims he had
some bad experiences in the Army and is now requesting his discharge be
upgraded.

3.  The applicant provides a self-authored statement and two third-party
statements in support of his application.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the
Army Board for Correction of Military Records (ABCMR) to excuse an
applicant’s failure to timely file within the 3-year statute of limitations
if the ABCMR determines it would be in the interest of justice to do so.
While it appears the applicant did not file within the time frame provided
in the statute of limitations, the ABCMR has elected to conduct a
substantive review of this case and, only to the extent relief, if any, is
granted, has determined it is in the interest of justice to excuse the
applicant’s failure to timely file.  In all other respects, there are
insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows that he enlisted in the Regular Army and
entered active duty on 10 February 1971.  He was initially trained in and
awarded military occupational specialty (MOS) 95B (MP), and was later
reclassified into MOS 76A (Supply Specialist).

3.  Item 33 (Appointments and Reductions) of the applicant's Enlisted
Qualification Record (DA Form 20) shows he was promoted to specialist four
on 8 March 1972, and that this is the highest rank he attained while
serving on active duty.

4.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 shows he
earned the National Defense Service Medal and Marksman Marksmanship
Qualification Badge with Rifle Bar during his active duty tenure.  His
record documents no acts of valor, significant achievement or service
warranting special recognition.

5.  The applicant's disciplinary history includes his acceptance of non-
judicial punishment (NJP) under the provisions of Article 15 of the Uniform
Code of Military Justice (UCMJ) on three separate occasions.  It also
includes a Summary Court-Martial (SCM) conviction and a Special Court-
Martial (SPCM) conviction.

6.  On 21 April 1971, the applicant accepted NJP for being absent without
leave (AWOL) from 19 through 20 April 1971.  His punishment for this
offense was a forfeiture of $50.00.

7.  On 6 July 1971, the applicant accepted NJP for violating orders issued
by his unit commander.  His punishment was a forfeiture of $21.00 and 14
days of restriction and extra duty.

8.   On 26 October 1972, the applicant accepted NJP for sleeping on guard
duty. His punishment for this offense was a reduction to private first
class (PFC).

9.  On 22 January 1973, a SCM found the applicant guilty of violating
Article 113 of the UCMJ by sleeping on post as a sentinel or burglary
patrol; and of violating Article 91 of the UCMJ by willfully disobeying the
lawful order of a superior noncommissioned officer (NCO).  The resultant
sentence was a reduction to private/E-1 (PV1) and a forfeiture of $150.00.


10.  On 14 August 1973, a SPCM found the applicant guilty of 9
specifications of violating Article 86 of the UCMJ by absenting himself
from duty; and of
15 specifications of violating Article 92 of the UCMJ by disobeying lawful
orders.  The resultant sentence was a forfeiture of $100.00 per month for
two months and confinement for two months.

11.  The specific court-martial charges preferred against the applicant are
not on file in the record.  However, there is a document on file confirming
that on
2 November 1973, the applicant after consulting with legal counsel and
being advised of basis for a contemplated court-martial for an offense
punishable by a bad conduct discharge, of the effects of his request for
discharge, and of the rights available to him, voluntarily requested
discharge for the good of the service.

12.  In his request for discharge, the applicant stated that he understood
that if his discharge request was accepted, he could receive an UD.  He
also that as a result of receiving an UD, he could be deprived of many or
all Army benefits, that he could be ineligible for many or all benefits
administered by the VA, and that he could be deprived of his rights and
benefits as a veteran under both Federal and State law.  He also
acknowledged his understanding that he could expect to encounter
substantial prejudice in civilian life as a result of receiving an UD.

13.  The separation authority approved the applicant's request for
discharge and directed he receive an UD.  On 16 November 1973, the
applicant was discharged accordingly.  The DD Form 214 he was issued shows
he was discharged under the provisions of chapter 10, Army Regulation 635-
200, for the good of the service, after completing a total of 2 years, 7
months and 4 days of creditable active military service and accruing 63
days of time lost due to AWOL and confinement.

14.  The applicant provides two third-party statements from his sister and
an employer.  His sister outlines the applicant's medical problems and
requests her brother be helped in anyway possible.  His employer states she
has known the applicant for more than 20 years and that he has done yard
and house work for her.  She states that the applicant has always been
honest, polite and dependable in character.  She concludes by stating the
applicant is currently down on his luck and is in need of help.

15.  On 20 January 1975, the Army Discharge Review Board (ADRB) after a
full and comprehensive review of the applicant's case, determined his
discharge was proper and equitable and it voted to deny his request for an
upgrade of his discharge.

16.  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.
An UOTHC discharge normally is appropriate for a Soldier who is discharged
in lieu of trial by court-martial.  However, the separation authority may
direct a general discharge (GD) if such is merited by the Soldier's overall
record during the current enlistment.  An honorable discharge (HD) is not
authorized unless the Soldier's record is otherwise so meritorious that any
other characterization clearly would be improper. At the time of the
applicant's discharge the regulation provided for the issuance of an UD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his discharge should be upgraded
because his youth and immaturity impaired his ability to serve and he is
now suffering from serious medical problems and is in need of benefits from
the VA were carefully considered.  However, the record shows the applicant
successfully completed training and served for more than a year and
advanced to the rank of SP4 before committing the misconduct that resulted
in his discharge.  Therefore, it is clear that in spite of his youth, he
had the ability to meet the standards required of a Solder, and although
his current medical situation is unfortunate, this factor is not
sufficiently mitigating to support granting the requested relief.

2.  The applicant's record documents no acts of valor, significant
achievement, or service warranting special recognition.  However, it does
reveal an extensive disciplinary history that includes his acceptance of
NJP on three separate occasions and his convictions by both a SCM and SPCM.


3.  Although the specific court-martial charge(s) that lead to his
discharge processing is not on file, the evidence of record does confirm
the applicant was charged with the commission of an offense punishable
under the UCMJ with a punitive discharge.  After consulting with defense
counsel, he voluntarily requested discharge from the Army in lieu of trial
by court-martial.  In his request for discharge, he acknowledged that he
understood he could be deprived of many or all veterans' benefits as a
result of receiving an UD and that he could face substantial prejudice in
civilian life as a result of receiving an UD.  All requirements of law and
regulation were met and that the rights of the applicant were fully
protected throughout the separation process.

4.  The evidence of record further shows that the applicant voluntarily
requested discharge to avoid a court-martial that could have resulted in
his receiving a punitive discharge.  The UD he received was normal and
appropriate under the regulatory guidance, and his overall record of
undistinguished service clearly did not support a GD or HD at the time, nor
does it support an upgrade now.

5.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___BPI __  __TMR__  __GJP___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




                                  _____Bernard P. Ingold_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070002433                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/08/30                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1973/11/16                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |In Lieu of C-M                          |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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