RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 December 2007
      DOCKET NUMBER:  AR20070009915


      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. Kathleen A. Newman            |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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, an upgrade of his undesirable
discharge (UD).

2.  The applicant states, in effect, that he only blames himself and is
sorry for his actions.  He states that he was young had no father and no
one to look up to.  He claims he became an addict at a very early age,
which took from him what he wanted most, a career in the Army.  He states
that he has lost his wife as a result of his drug use; however, today,
thanks to a higher power, he can say he is a recovering addict.  He
indicates that over 30 years have passed since his discharge and he prays
that due consideration will be given to his request to upgrade his
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 10 April 1973.  He was trained in and awarded
military occupational specialty (MOS) 11B (Light Weapons Infantryman), and
the highest rank he attained while serving on active duty was private/E-2
(PV2).

3.  The applicant's record further shows that during his active duty
tenure, he earned the Marksman Marksmanship Qualification Badge with Rifle
Bar.  His record documents no acts of valor, significant achievement, or
service warranting special recognition.

4.  On 5 September 1973, the applicant departed absent without leave (AWOL)
from his unit at Fort Hood, Texas.  He remained away for 7 days until
returning on 11 September 1973.

5.  On 27 September 1973, 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 5 through 11 September 1973.  His
punishment for this offense was a forfeiture of $79.00 and 14 days of
restriction and extra duty.

6.  The applicant's record further shows that he accrued an additional 25
days of AWOL during two periods between 8 January 1974 and 19 February
1974.

7.  On 1 April 1974, the applicant departed AWOL from his unit at Fort
Hood.  He was dropped from the rolls on 2 April 1974, and he returned to
military control at Fort Hood on 2 July 1974.

8.  The applicant's Military Personnel Records Jacket (MPRJ) does not
include a separation packet containing the specific facts and circumstances
surrounding his separation processing.  However, it does include a properly
constituted separation document (DD Form 214) that shows he 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.  It also shows that at
the time of his separation, he had completed a total of 1 year and 19 days
of creditable active military service, and that he had accrued 122 days of
time lost due to being AWOL.

9.  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.

10.  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.

11.  The same 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 he is sorry for his actions, that he
was young and an addict at the time of discharge, but is now recovering
were carefully considered.  However, while the applicant taking
responsibility for his actions and his recovering addict status are
noteworthy, they are not sufficiently mitigating to support granting the
requested relief at this late date.

2.  The available evidence 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.  The record 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.

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

___KAN _  __RML__  __EEM __  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.




                                  _____Kathleen A. Newman_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070009915                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/12/06                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1974/08/28                              |
|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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