RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           20 APRIL 2004
      DOCKET NUMBER:   AR2003099587


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


  The following members, a quorum, were present:

|     |Mr. Thomas D, Howard              |     |Chairperson          |
|     |Ms. Jennifer L. Prater            |     |Member               |
|     |Mr. Lawrence Foster               |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 that his undesirable discharge be upgraded.

2.  The applicant states, in effect, that he was mistreated and that
because of his "own stupidity" he did not stick it out.  He states that
everything about his life "was pretty messed up" at that time of his life.
He states that he has no evidence to support his claim that he was harassed
by his supervisors, but does state that he "had to enlist, first by
civilian authorities then by the military."  He states that he has "gone
thirty years with this on [his] mind" and that at the time it seemed like
it was the only way out.  He notes that he was young and that he would now
like a little closure.  He states this has bothered him everyday.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an injustice which occurred
on
20 August 1974.  The application submitted in this case is dated 7 October
2003.

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 limitation 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.  Records available to the Board indicate that the applicant enlisted in
the Army for a period of 2 years on 5 October 1973.  He was 19 years old at
the time and had 11 years of formal education.  Two documents in the
applicant's record indicate that he enlisted as an alternative to going to
jail for possession of marijuana.

4.  The applicant did, however, successfully complete basic combat training
and in December 1973 was assigned to Fort Leonard Wood, Missouri for
advanced individual training.

5.   On 7 January 1974 the applicant departed AWOL (absent without leave).
He returned to military control at Fort Ord, California on 7 February 1974
and was punished under Article 15 of the Uniform Code of Military Justice.
His punishment included forfeiture of $50.00 per month for two months.



6.  Following the applicant's punishment he was reassigned to Fort Polk,
Louisiana.  However, the applicant never arrived at his new duty station
and on 22 March 1974 he was again reported as AWOL.  He was apprehended by
civilian authorities in California on 1 July 1974 and returned to military
control.

7.  When charges were preferred, the applicant consulted with counsel and
voluntarily requested discharge for the good of the service in lieu of
trial by court-martial.  His request acknowledged he understood the nature
and consequences of the undesirable discharge which he might receive.  He
indicated, in his own handwriting, that he understood he could be denied
some or all veterans' benefits as a result of his discharge and that he may
be deprived of rights and benefits as a veteran under both Federal and
State law.  In a statement submitted on his own behalf he indicated that he
came into the Army because "either that or go to prison for 2 yrs [years]."
 He stated that he wanted to get out because after he enlisted "they
dropped the charges."

8.  A mental health evaluation found the applicant fully alert and
oriented, his memory good, and his thought process clear and normal.  It
determined the applicant was mentally responsible, able to distinguish
right from wrong and to adhere to the right.

9.  The applicant's request was approved and the separation authority
directed that an undesirable discharge be issued.  On 20 August 1974 the
applicant was separated under the provisions of Army Regulation 635-200,
Chapter 10.  He had 6 months and 6 days of creditable service and 130 days
lost time.

10.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he enlisted rather than go to jail
appear to be validated by statements in his Official Military Personnel
File.  However, the applicant, by his own actions, essentially avoided jail
and the Army by departing AWOL.




2.  His argument that he suffered from harassment is not supported by any
evidence available to the Board.  In fact it is noted that the applicant
successfully completed basic combat training and never arrived at either of
his advanced individual training sites further supporting a conclusion that
his allegations of harassment may have been unfounded.

3.  The applicant’s contention that he regrets the actions of his youth is
understandable, however, the evidence does show that the applicant
successfully completed basic combat training, which is an indication that
he was capable of honorable service despite his youth.  The fact that he
now regrets the events that resulted in his undesirable discharge is not
sufficient to warrant an upgrade of the character of that discharge.

4.  The applicant has submitted neither probative evidence nor a convincing
argument in support of his request.

5.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 August 1974; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
19 August 1977.  However, the applicant 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 RELIEF

________  ________  ________  GRANT FORMAL HEARING

__TDH__  __JLP___  __LF  ___  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.




            ___Thomas D. Howard____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003099587                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040420                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |