RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 October 2007
      DOCKET NUMBER:  AR20070007333


      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.

2.  The applicant states, in effect, he went absent without leave (AWOL)
because he was told by his wife that she was having an affair and he had to
go home to see if it was true.  He states he caught his wife with another
man and he was so hurt by the situation he did not know what to do.  He
apologizes for his actions and hopes to receive an upgrade of his
discharge.

3.  The applicant provides the following documents in support of his
application:  Self-Authored Statement; Third-Party Statements from his Wife
and Sister; Separation Document (DD form 214); and Unit Commander Discharge
Recommendation.

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 2 June 1972.  He was trained in, awarded and served
in military occupational specialty (MOS) 36K (Field Wireman).

3.  The applicant's Personnel Qualification Record (DA Form 2-1) shows, in
Item 18 (Appointments and Reductions) that he was promoted to specialist
four (SP4) on 1 November 1973, and this was the highest rank he attained
while serving on active duty.  Item 18 also shows he was reduced to private
first class (PFC) on
6 March 1975.

4.  The applicant's DA Form 2-1 shows, in Item 9 (Awards, Decorations &
Campaigns), that during his active duty tenure, he earned the National
Defense Service Medal.  His record documents no acts of valor, significant
achievement, or service warranting special recognition.

5.  The applicant's record shows that he accepted non-judicial punishment
(NJP) under the provisions of Article 15 of the Uniform Code of Military
Justice (UCMJ) on three separate occasions.

6.  On 2 November 1972, the applicant accepted NJP for being AWOL from
24 October to 30 October 1972.  His punishment for this offense was a
forfeiture of $75.00 and 10 days of extra duty.

7.  On 2 January 1973, the applicant accepted NJP for being AWOL from
15 December 1972 to 1 January 1973.  His punishment for this offense was a
forfeiture of $120.00 per month for two months and a reduction to private/E-
1 (PV1), which was suspended for 90 days.

8.  On 6 March 1975, the applicant accepted NJP for being AWOL from
3 to 27 February 1975.  His punishment for this offense was a reduction to
PFC, forfeiture of $98.00 and 14 days of extra duty and restriction.

9.  On 2 June 1975, the applicant departed AWOL and he remained away for
108 days until returning to military control on 19 September 1975.

10.  A separation packet containing the specific facts and circumstances
surrounding the applicant's separation processing is not on file in the
applicant's record.  The record does contain a properly constituted DD Form
214 that shows the applicant was separated under the provisions of chapter
10, Army Regulation 635-200, for the good of the service in lieu of trial
by court-martial.

11.  The applicant's DD Form 214 also confirms he received an UD.  If
further shows he completed a total of 3 years and 24 days of creditable
active military service and accrued 155 days of time lost due to AWOL and
confinement.

12.  The applicant provides third-party statements from his wife and
sister, who both attest to his good character and post-service conduct.
Both indicate he was having problems in his first marriage and this
accounted for his AWOL.  He also provides the 1st and 2nd Endorsements on
his discharge request.  The first from his unit commander contained a
recommendation that he receive a general, under honorable conditions
discharge (GD) and the second from his colonel level commander contained a
recommendation that he receive an UD.
13.  There is no indication that the applicant applied to the Army
Discharge Review Board (ADRB) for an upgrade of his discharge within the
ADRB’s 15-year statute of limitations.

14.  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.  The separation authority could approve
a general, under honorable conditions discharge (GD) or honorable discharge
(HD) if warranted by the member's overall record of service; however, a
discharge under other than honorable conditions is normally considered
appropriate.  At the time of the applicant's discharge, regulation provided
for the issuance of an UD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that he is sorry for his mistakes and that
his AWOL was the result of problems he was having in his marriage, along
with the third-party statements he provided were carefully considered,
However, these factors are not sufficiently mitigating to support granting
the requested relief.

2.  The evidence of record does not include a separation packet that
contains the specific facts and circumstances surrounding the applicant’s
final discharge processing.  However, it does include a properly
constituted DD Form 214 that identifies the reason and characterization of
the applicant’s final discharge.  Therefore, Government regularity in the
discharge process is presumed.

3.  The applicant’s separation document confirms he was discharged under
the provisions of chapter 10, Army Regulation 635-200, for the good of the
service, in lieu of trial by court-martial.  In connection with such a
discharge, he was charged with the commission of an offense punishable with
a punitive discharge under the UCMJ.  Procedurally, he was required to
consult with defense counsel, and to voluntarily request separation from
the Army in lieu of trial by court-martial.  In doing so, he would have
admitted guilt to the stipulated offense(s) under the UCMJ that authorized
the imposition of a punitive discharge.

4.  In the absence of information to the contrary, it is concluded that all
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout the separation process.

5.  Although the applicant's post-service conduct is noteworthy, this
factor alone does not support an upgrade of his discharge at this time.
His military service record documents no acts of valor, significant
achievement or service warranting special recognition that would have
warranted the issue of a GD or HD at the time of his discharge, or that
would support an upgrade at this time.  Therefore, there is an insufficient
evidentiary basis to support granting the requested relief.

6.  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                 |AR20070007333                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/10/23                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1975/11/25                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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