RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 October 2007
      DOCKET NUMBER:  AR20070006916


      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. Hubert O. Fry                 |     |Chairperson          |
|     |Mr. William Blakely               |     |Member               |
|     |Mr. Michael J. Flynn              |     |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, he would not have received the type of
discharge he did under current standards.  He further indicates he was
close to finishing his tour when he was accused of homosexual tendencies
and because he was scared, he accepted a discharge.

3.  The applicant provides no additional documentary evidence 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 13 April 1973.  He was trained in and awarded
military occupational specialty (MOS) 36K (Field Wireman), and private
first class is the highest rank he attained while serving on active duty.

3.  The applicant's record documents no acts of valor, significant
achievement, or service warranting special recognition.  It does reveal a
disciplinary history that includes his acceptance of non-judicial
punishment (NJP) under the provisions of Article 15 of the Uniform Code of
Military Justice (UCMJ) on four separate occasions.

4.  On 8 March 1974, the applicant accepted NJP for being absent without
leave (AWOL) from 29 December 1973 to 6 February 1974.  His punishment for
this offense was a reduction to private/E-1 (PV1), forfeiture of $75.00 per
month for two months, and 21 days of extra duty and restriction.
5.  On 3 May 1974, the applicant accepted NJP for breaking restriction.
His punishment for this offense was a forfeiture of $75.00 per month for
two months, and 30 days of restriction and extra duty.

6.  On 24 July 1974, the applicant accepted NJP for breaking restriction
and for being AWOL from 8 July to 16 July 1974.  His punishment for these
offenses was a forfeiture of $163.00 per month for two months and 45 days
of restriction and extra duty.

7.  On 30 June 1975, his unit commander prepared a Bar to Reenlistment
Certificate on the applicant citing the applicant’s record of NJP,
demonstrated lack of motivation, substandard performance of duty, and his
failure to demonstrate the necessary traits and characteristics of a
professional Soldier as the basis for taking the action.

8.  On 31 July 1975, the applicant accepted NJP for failing to go to his
appointed place of duty at the prescribed time.  His punishment for this
offense was a reduction to private/E-2, forfeiture of $91.00, and 14 days
of restriction and extra duty.

9.  On 19 August 1975, the Bar to Reenlistment on the applicant was
approved by the proper authority.

10.  On 3 November 1975, a Charge Sheet (DD Form 458) was prepared
preferring two court-martial charges, containing 9 specifications, against
the applicant for violating Article 86 and Article 134 of the UCMJ.  The
applicant was charged with 4 specifications of violating Article 86 by
being AWOL during the following four separate periods:  8-16 September
1975; 20-24 October 1975;
24-27 October 1975; and 29 October-3 November 1975.  He was also charged
with 5 specifications of violating Article 134 by committing the following
offenses on the dates indicated:  7 September 1975-wrongfully possessing
marijuana;
24 October 1975-wrongfully altering a military identification card; 24
October 1975 - wrongfully possessing the ration care of another Soldier; 24
October 1975-wrongfully possessing marijuana; and 27 October 1975-
unlawfully carrying a concealed weapon (switchblade knife).

11.  On 11 November 1975, 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 voluntarily
requested discharge in the good of the service in lieu of trial by court-
martial.
12.  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.

13.  On 18 November 1975, 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.  On 28 November 1975,
the applicant was discharged accordingly.  The DD Form 214 he was issued
shows he completed a total of 2 years, 5 months, and 9 days of creditable
active military service and that he accrued 67 days of time lost due to
AWOL.

14.  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.

15.  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.

16.  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 contentions that his discharge should be upgraded
because he would have not received the same discharge under current
standards, he was wrongfully accused of being a homosexual, and he was
close to completing his tour of duty was carefully considered.  However,
there is insufficient evidence to support these claims.
2.  The regulatory standard for separation for the good of the service in
lieu of trail by court-martial, with the exception of the issue of an UD
Certificate, has not significantly changed since the applicant's discharge.
 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 in effect at the time and an
UOTHC is still appropriate for members separated for the good of the
service in lieu of trial by court-martial under current regulatory
standards.  Further, the applicant's 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

__HOF __  __WB  __  __MJF __  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.




                                  _____Hubert O. Fry______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070006916                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/10/23                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1975/11/20                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|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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