RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 December 2007
      DOCKET NUMBER:  AR20070010207


      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. William D. Powers             |     |Chairperson          |
|     |Mr. Michael J. Flynn              |     |Member               |
|     |Ms. Sherry J. Stone               |     |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 either a general, under honorable conditions discharge (GD)
or honorable discharge (HD).

2.  The applicant states, in effect, that he is requesting an upgrade of
his discharge for health reasons.

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 19 December 1972.  He was trained in and awarded
military occupational specialty (MOS) 64C (Motor Transport Operator), and
never advanced above the rank of private/E-1 (PV1) while serving on active
duty.

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

4.  The applicant's record shows that on 2 April 1973, the applicant
departed absent without leave (AWOL) from his advanced individual training
(AIT) unit at Fort Jackson, South Carolina.  He remained away for 11 days
until returning on 12 April 1973.

5.  On 1 May 1973, the applicant again departed AWOL from his unit at Fort
Jackson.  He remained away for 41 days until returning to military control
at
Fort Benning, Georgia, on 11 June 1973.

6.  On 21 June 1973, the applicant was placed in pre-trial confinement at
Fort Benning, where he remained for 42 days until 1 August 1973.

7.  On 12 August 1973, the applicant again departed AWOL from his unit at
Fort Benning.  He remained away for 51 days until returning on 2 October
1973.

8.  On 4 October 1973, the applicant was placed in pre-trial confinement at
Fort Benning.  He remained in this status for 46 days until 18 November
1973.

9.  On 11 December 1973, the applicant again departed AWOL from his unit at
Fort Benning.  He remained away for 36 days until returning on 15 January
1974.

10.  On 13 February 1974, a Charge Sheet (DD Form 456) was prepared
preferring a court-martial charge against the applicant for 3
specifications of violating Article 86 of the Uniform Code of Military
Justice (UCMJ) by being AWOL on the following three separate occasions:
from on or about 1 May to on or about 12 June 1973; from on or about 12
August to on or about 2 October 1973; and from on or about 11 December 1973
to on or about 16 January 1974.

11.  On 25 January 1974, 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 for the good of the service in lieu of trial by court-
martial.

12.  In his discharge request, the applicant 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.

13.  The applicant elected to submit a statement in his own behalf with his
discharge request.  In it, he stated that he could not adjust to the Army
and did not think he could be a good Soldier.  He also stated that he knew
he would
receive an UD and would lose most of his benefits, and he still wanted out.
 He concluded by indicating that he had a new baby and he wanted out to
start a new life for him and his family.

14.  On 15 February 1974, the separation authority approved the applicant's
request for discharge and directed he receive an UD.  On 21 March 1974, the
applicant was discharged accordingly.  The DD Form 214 he was issued shows
he completed a total of 10 months and 4 days of creditable active military
service and that he accrued 149 days of time lost due to AWOL.

15.  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.

16.  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.

17.  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 contention that his discharge should be upgraded for
health reasons was carefully considered.  However, this factor is not
sufficiently mitigating to support granting the requested relief.

2.  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, 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.

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

___WDP_  __MJF __  __SJS___  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.




                                  _____William D. Powers____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070010207                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/12/11                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1974/03/21                              |
|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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