RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 November 2007
      DOCKET NUMBER:  AR20070009411


      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. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Larry C. Bergquist            |     |Member               |
|     |Mr. Dale E. DeBruler              |     |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 was a victim.  He claims that he
was a cook and lived on post with his wife.  He states that he did not want
to leave, but could not keep his mind on his job knowing his wife was in
bed with other men.  He claims he caught a sergeant in the act with his
wife twice and as a result, this sergeant gave him extra duty so he could
sneak and go to bed with his wife.  He states that he reported this to his
lieutenant, who told him it would be taken care of.  He states there was
also a corporal sleeping with his wife and he does not know how many more.


3.  The applicant provides a self-authored statement in support of the
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 30 July 1974.  He was initially trained in and
awarded military occupational specialty (MOS) 16P (Chaparral Crewman), and
later served in MOS 91B (Cook) in an on-the-job training (OJT) status.

3.  The applicant's Personnel Qualification Record (DA Form 2-1) shows he
was advanced to the rank of private first class (PFC) on 13 January 1976,
and that this is the highest rank he attained while serving on active duty.
 His records show that 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,
4.  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 two separate occasions.

5.  On 23 July 1975, the applicant accepted NJP for being absent without
leave (AWOL) from 16 through 23 July 1975.  His punishment for this offense
was a forfeiture of $50.00 (suspended).

6.  On 27 August 1975, the applicant accepted NJP for being AWOL from
7 through 27 August 1975.  His punishment for this offense was a reduction
to PV2 and 14 days extra duty.

7.  On 8 March 1976, the applicant departed AWOL from his unit at Fort
Lewis, Washington.  He was dropped from the rolls of the organization and
on 7 April 1976, and he remained away until returning to military control
at Fort Lewis, Washington, on 17 May 1976.

8.  On 18 May 1976, a Charge Sheet (DD Form 458) was prepared preferring a
court-martial charge against the applicant for violating Article 86 of the
UCMJ by being AWOL from on or about 8 March through on or about 17 May
1976.

9.  On 20 May 1976, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
maximum punishment authorized under the UCMJ, the significance of a bad
conduct or dishonorable discharge, and of the possible effects of an UD.
Subsequent to this counseling, the applicant voluntarily requested
discharge for the good of the service under the provisions of chapter 10,
Army Regulation 635-200.  He stated that by submitting the request for
discharge, he was acknowledging his guilt of the charge against him or of a
lesser included offense therein contained, which also authorized the
imposition of a bad conduct or dishonorable discharge.  He further
indicated that he understood that if his request for discharge were
approved, he could receive an UOTHC discharge, which could result in his
being deprived of many or all Army benefits that he would be
administratively reduced to the lowest enlisted grade, and that he could be
ineligible for many or all benefits administered by the Department of
Veterans Affairs (VA).  He further acknowledged his understanding that he
could expect to encounter substantial prejudice in civilian life because of
an UD, and he was advised that he could submit statements in his own
behalf.

10.  The applicant submitted a statement in his own behalf with his
discharge request. In effect, he stated that he wanted to be discharged
from the Army because he had too many problems and it did not fit him.  He
stated that he had been talked into joining the Army by his brother and did
not know what he was getting into.  He stated the reason he wanted out was
to go home and help his 16 year old brother support his father, who was
unable to work.

11.  On 28 May 1976, the separation authority approved the applicant's
discharge under the provisions of chapter 10, Army Regulation 635-200 for
the good of the service, and directed the applicant receive an UD and that
he be reduced to the lowest enlisted grade.  On 3 June 1976, the applicant
was discharged accordingly.  The separation document (DD Form 214)  issued
the applicant upon his discharge confirms he completed a total of 1 year, 7
months and 7 days of creditable active military service and that he accrued
97 days of time lost due to AWOL.

12.  On 21 May 1985, the Army Discharge Review Board (ADRB), after
carefully reviewing the applicant's case, determined his discharge was
proper and equitable, and it voted to deny his request for an upgrade of
his UD.

13.  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, at the time of the applicant's
separation the regulation provided for the issuance of an UD.

14.  Although the separations regulation states that an UOTHC discharge is
normally considered appropriate for members separating under the provisions
of chapter 10, the separation authority may direct a general, under
honorable conditions 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was a victim and that his discharge
was the result of his wife sleeping with other Soldiers was carefully
considered.  However, there is insufficient evidence to support this claim.


2.  The applicant's record documents no acts of valor, significant
achievement or service warranting special recognition.  However, it does
confirm he was charged with the commission of an offense punishable under
the UCMJ with a punitive discharge, and that he 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 undistinguished
record of service clearly did not support a GD or HD at the time, nor does
it support an upgrade now.

3.  The evidence of record shows that after consulting with defense
counsel, the applicant voluntarily requested discharge from the Army in
lieu of trial by
court-martial.  In his request for discharge, he admitted guilt to the
charge against him, or of a lesser included offense, that also authorized
the imposition of a bad conduct or dishonorable discharge.  All
requirements of law and regulation were met and that the rights of the
applicant were fully protected throughout the separation process.

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

__MKP __  __LCB __  __DED __  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.




                                  _____Margaret K. Patterson___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070009411                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/11/15                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1976/06/03                              |
|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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