RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        4 October 2007
      DOCKET NUMBER:  AR20070006419


      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:

|     |Ms. Susan A. Powers               |     |Chairperson          |
|     |Mr. Edward E. Montgomery          |     |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, in effect, that his undesirable discharge (UD)
be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that his military record up to the
point of going absent without leave (AWOL) was exemplary.  He states he was
advised by a military lawyer to go AWOL several times for short periods to
ensure his separation from service, which is what he wanted at the time
because of the military occupational specialty (MOS) he was assigned.

3.  The applicant provides his separation document (DD Form 214) 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 he enlisted in the Regular Army and
entered active duty on 6 August 1971.  He successfully completed basic
combat training at Fort Lewis, Washington, and was assigned to Fort Leonard
Wood, Missouri, to attend advanced individual training (AIT) in MOS 94B
(Food Service Specialist).  His record documents no acts of valor,
significant achievement or service warranting special recognition.

3.  Between 1 February and 20 April 1972, while he was still in AIT, the
applicant accrued 25 days of time lost during four separate periods of
being AWOL.

4.  On 9 February 1972, the applicant accepted non-judicial punishment
(NJP) under the provisions of Article 15 of the Uniform Code of Military
Justice (UCMJ) for being AWOL from 1 to 5 February 1972.  His punishment
for this offense was a forfeiture of $74.00, and 14 days of restriction and
extra duty.
5.  On 26 April 1972, a Charge Sheet (DD Form 458) was prepared preferring
a court-martial charge against the applicant for two specifications of
violating Article 86 of the UCMJ by being AWOL from on or about 15 April
1972 to on or about 21 April 1972 and from on or about 1 April 1972 to on
or about 6 April 1972.

6.  On 26 April 1972, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial under
circumstances that could lead to a bad conduct or dishonorable discharge,
of the effects of a discharge request for the good of the service, and of
the rights available to him.  Subsequent to this counseling, he requested
discharge in the good of the service.  In his request, he acknowledged that
he could receive an UD and that 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, and that he could be deprived of his
rights and benefits as a veteran under both State and Federal law.  He
further indicated that he understood he could encounter substantial
prejudice in civilian life by reason of an UD.  He also elected not to
submit a statement in his own behalf.

7.  On 10 May 1972, the separation authority approved the applicant's
request for discharge and directed he receive an UD, and directed that the
applicant be reduced to the lowest enlisted grade if serving in a higher
grade.  On 15 May 1972, the applicant was discharged accordingly.  The DD
Form 214 he was issued shows he completed a total of 8 months and 15 days
of creditable active military service and that he accrued 25 days of time
lost due to AWOL.

8.  There is no indication that the applicant applied to the Army Discharge
Review Board for an upgrade of his discharge within that board's 15-year
statute of limitations.

9.  Army Regulation 635-200 (Active Duty Enlisted Administrative
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.

10.  The separations regulation states that an under other than honorable
conditions (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 contention that his discharge should be upgraded
because an Army lawyer advised him to go AWOL for short periods in order to
be separated , which is what he wanted at the time was carefully
considered.  However, there is insufficient evidence to support this claim.


2.  The evidence of record confirms the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, the applicant voluntarily
requested discharge from the Army in lieu of trial by court-martial.  All
requirements of law and regulation were met and that the rights of the
applicant were fully protected throughout the separation process.

3.  The evidence of record further shows 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 short and
undistinguished record of service clearly did not support a GD or HD at the
time, nor does it support an upgrade now.

4.  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

_SAP___  _EEM___  _QAS____  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.




                                     __Susan A. Powers__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070006419                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/10/04                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1972/05/15                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |In lieu of CM                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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