RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         13 April 2006
      DOCKET NUMBER:  AR20050012979


      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.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Mr. David K. Hassenritter         |     |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 general, under
honorable conditions discharge (GD).

2.  The applicant states, in effect, he was not properly advised by his
legal counsel, who wrongly encouraged him to accept discharge.  He claims
that his discharge should be upgraded based on his overall record of
service and two combat tours in the Republic of Vietnam (RVN).  He further
states that it is likely he is suffering from a Post Traumatic Stress
Disorder (PTSD).

3.  The applicant provides no additional documentary evidence in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on (date).  The application submitted in this case is dated
24 August 2005.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's record shows that he initially enlisted in the Regular
Army and entered active duty on 21 October 1966.  He was trained in and
awarded military occupational specialty (MOS) 11C (Infantry Indirect Fire
Crewman).

4.  On 6 April 1969, the applicant was honorably discharged for the purpose
of immediate reenlistment, and on 7 April 1969, he reenlisted for six
years.  On
30 January 1975, he was again honorably discharged for the purpose of
immediate reenlistment, and on 31 January 1975, he reenlisted for three
years.

5.  The applicant's Personnel Qualification Record (DA Form 2-1) shows that
he completed overseas tours in Germany and Korea, and two combat tours in
the RVN.  His record also shows that during his tenure on active duty, he
earned the following awards:  National Defense Service Medal (NDSM);
Vietnam Service Medal (VSM); RVN Campaign Medal; Combat Infantryman Badge
(CIB); Army Good Conduct Medal (AGCM); Expert Qualification Badge with
Rifle Bar; and
4 Overseas Bars.

6.  The applicant's disciplinary history includes his acceptance of
nonjudicial punishment (NJP) under the provisions of Article 15 of the
Uniform Code of Military Justice (UCMJ) on the following seven separate
occasions for the offenses indicated:  17 February 1972, for possessing and
consuming intoxicating beverages during field training; 6 November 1972,
for failing to go to his appointed place of duty at the prescribed time; 8
January 1973, for being derelict in the performance of his duties; 9
December 1973, for disobeying the lawful order of a superior commissioned
officer; 12 September 1974, for being absent without leave (AWOL) from 26
through 30 August 1974; 29 August 1975, for wrongfully possessing
marihuana; and 25 March 1976, for being AWOL from 10 December 1975 through
1 January 1976.

7.  Item 21 (Time Lost) of the applicant's DA Form 2-1 shows that he
departed AWOL from his organization on 3 May 1976 and remained away for 89
days until being returned to military control on 28 July 1976.

8.  The applicant's Military Personnel Records Jacket (MPRJ) contains no
medical records that would indicate the applicant was suffering from a
physically or mentally disabling condition at the time of his discharge.
It is also void of a separation packet containing the specific facts and
circumstances surrounding the applicant's separation processing.

9.  The applicant's MPRJ does contain a properly constituted separation
document (DD Form 214) that confirms 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, and that he received an undesirable discharge
(UD) on
9 September 1976.  The DD Form 214 confirms he completed a total of 9
years, 6 months, and 18 days of creditable active military service, and had
accrued
112 days of time lost due to AWOL.

10.  On 16 March 1981, the Army Discharge Review Board (ADRB) voted to
upgrade the applicant's UD to a general, under honorable conditions
discharge (GD) based on his overall record of service; however, it
concluded the reason for his discharge was proper and equitable.

11.  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.  A
discharge under other than honorable conditions is normally considered
appropriate. However, at the time of the applicant's separation the
regulation provided for the issuance of an undesirable discharge.

12.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the
3 year limit on filing to the Army Board for Correction of Military Records
(ABCMR) should commence on the date of final action by the ADRB.  In
complying with this decision, the ABCMR has adopted the broader policy of
calculating the 3-year time limit from the date of exhaustion in any case
where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was improperly counseled and that
his overall record of service supports a further upgrade of his discharge
was carefully considered.  However, the fact that he was honorably
discharged on two separate occasions for the purpose of immediate
reenlistment is adequately documented by the two separation documents on
file in his record for these periods of service.

2.  Further, his overall record of service was properly acknowledged when
his
UD was upgraded to a GD by the ADRB.  His disciplinary history and final
period of AWOL constitute misconduct that clearly diminished the overall
quality of his service below that meriting a fully honorable discharge for
the enlistment under review.  As a result, it would not be appropriate to
upgrade his discharge beyond the GD that has already been granted by the
ADRB.

3.  The available evidence does not include a separation packet containing
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.

4.  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.  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.  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.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 16 March 1981.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 15 March 1984.  However, he did not file
within the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__RTD __  __PHM__  __DKH__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  _____Richard T. Dunbar ____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050012979                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/04/13                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1976/09/09                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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