RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 September 2007
      DOCKET NUMBER:  AR20070006842


      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. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Frank C. Jones                |     |Member               |
|     |Ms. Carmen Duncan                 |     |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 to general under
honorable conditions.

2.  The applicant states that he enlisted when he was 17 years old and only
had four months left.  He wanted to serve his country the best way he
could, but he had a bad drinking and drug problem and got mixed up with the
wrong crowd.  He has been sober and drug free for 11 years and is trying to
better himself.

3.  The applicant provides his DD Form 214 (Report of Separation from
Active Duty); a Department of Veterans Affairs Form 21-4138 (Statement in
Support of Claim); a letter of support from his wife, dated 12 June 2006; a
letter from the Mexico [Maine] Police Department; an Outstanding Student
certificate, dated      2 November 2001; a certificate of completion, dated
2 November 2001; and a High Honors certificate, dated 2 November 2001.

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 was born on 29 November 1954.  He enlisted in the Regular
Army on 9 December 1971.  He completed basic combat training and advanced
individual training and was awarded military occupational specialty 94B
(Cook).

3.  On 14 November 1972, the applicant was convicted, contrary to his
pleas, by a special court-martial of absenting himself without leave for 1
day, damaging government property, and being drunk and disorderly.  His
approved sentence was to be reduced to pay grade E-1, to forfeit $100.00
pay per month for             2 months, to be confined at hard labor
without confinement for 60 days, and       to be restricted to the
installation for 60 days.

4.  On 24 June 1974, court-martial charges were preferred against the
applicant charging him with three specifications of assault, one
specification of breaking and entering with the intent to commit an
assault; and one specification of wrongfully communicating a threat.

5.  On 22 July 1974, 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 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 submitted a statement in his own behalf.

6.  In his statement, the applicant stated he was sorry for his conduct
which necessitated the preferring of charges against him.  His only excuse
was that he had a little temper which he determined to fully control in the
future.  He realized that his military career was ruined.  It would not do
him or the Army much good for him to remain in the service and it would be
to the benefit of both himself and the Army for him to be discharged as
soon as possible.  He requested that strong consideration be given to
issuing him a general discharge.  He had a wife and two small children and
the future of his family was most important to him.  The advantage of the
many veterans’ benefits available would help to ensure the future of
himself and his family.

7.  On 4 August 1974, the applicant completed a separation physical
examination and was found qualified for separation.

8.  On 15 August 1974, the appropriate authority approved the request and
directed the applicant be issued an Undesirable Discharge Certificate.

9.  On 16 August 1974, 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 2 years, 8 months, and 7 days of creditable active service and
had 1 day of lost time.

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.  However, at the
time of the applicant's separation the regulation provided for the issuance
of an undesirable discharge.

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.

2.  It is acknowledged that the applicant was young at the time, having
enlisted shortly after his 17th birthday; however, he had successfully
completed basic combat training and advanced individual training and was
aware of the Army’s standards of conduct.

3.  The applicant’s contention that he had a bad drinking and drug problem
and got mixed up with the wrong crowd has been considered.  However, drug
use in itself was misconduct and therefore was not a mitigating
circumstance.

4.  The applicant’s good post-service conduct is admirable.  However, this
factor does not warrant granting the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__lds___  __fcj___  __cd____  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.




                                  __Linda D. Simmons
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070006842                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070906                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19740816                                |
|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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