RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           26 February 2004
      DOCKET NUMBER:   AR2003091292


      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. Rosa M. Chandler              |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Arthur A. Omartian            |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Ms. Mae M. Bullock                |     |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, in essence, that his undesirable discharge (UD)
be upgraded to an honorable discharge.

2.  The applicant states, in effect, he enlisted to serve as an infantryman
in Vietnam.  He went to Vietnam in 1967 and he was wounded on Christmas
Eve.  He received the Purple Heart.  He returned to his unit in a limited
duty status and became the commander’s driver until he returned to the
United States.  Although most Vietnam returnees received early releases
from active duty, he was sent to Fort Benning, Georgia where he performed
limited duty due to his physical profile.  He became disillusioned and went
AWOL (absent without leave).  He was arrested and sent to the stockade at
Fort Meade, Maryland where he was treated like a convict.  He was separated
with a UD.

3.  The applicant provides:  a medical document that shows, on 25 December
1967, he was treated for an injury to the right ear and first degree burns
to his face.  The injury was received during a firefight with an enemy
force and the applicant was awarded the Purple Heart.  On 10 January 1968,
he returned to duty with a physical profile and limited duty.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an error or injustice which
occurred on 20 June 1974.  The application submitted in this case is dated
April 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.  On 6 March 1967, the applicant enlisted in the Regular Army for a
period of 3 years and training in military occupational specialty (MOS) 11B
(Light Weapons Infantryman).  He completed the training requirements and
was awarded the MOS.

4.  On 5 August 1967, he was assigned to Vietnam.  On 25 December 1967, he
was wounded in action.  On 4 August 1968, he left Vietnam and returned to
the United States and he was assigned to Fort Benning, Georgia on
7 September 1968.


5.  The applicant left his unit in an AWOL status from 2-7 December 1968.
On 7 December 1968, nonjudicial punishment (NJP) was imposed against the
applicant under the provisions of Article 15, Uniform Code of Military
Justice, for this period of AWOL, and for disobeying a general regulation
by traveling on commercial transportation in excess of the 100-mile
limitation while on an overnight pass on 28 November 1968.  His punishment
included reduction from pay grade E-3 to pay grade E-2 (suspended for 30
days), forfeiture of $32.00 pay per month for 1 month, and 14 days of extra
duty and restriction.

6.  On 7 January 1969, NJP was imposed against the applicant for leaving
his unit in an AWOL status from 4-6 January 1969.  His punishment included
reduction from pay grade E-3 to pay grade E-2 (suspended for 30 days),
forfeiture of $25.00 pay per month for 1 month, and 14 days of extra duty
and restriction.  Due to unknown reasons, that portion of the punishment
that provided for reduction to pay grade E-2 was vacated on 1 February
1969.

7.  The applicant left his unit at Fort Benning in an AWOL status from 18
May 1969-30 April 1974 when he was returned to military control at the
Personnel Control Facility, Fort Meade.  On 13 May 1974, court-martial
charges were preferred against him for this period of AWOL.

8.  On 16 May 1974, the applicant underwent a physical examination and he
was determined to be qualified for separation.

9.  On 24 May 1974, the applicant consulted with legal counsel and
requested discharge for the good of the service in lieu of trial by court-
martial under the provisions of chapter 10, Army Regulation 635-200.  He
was advised that he could receive a UD.  He acknowledged that he understood
the ramifications of receiving a UD.  He did not submit a statement in his
own behalf.

10.  On 13 June 1974, the applicant’s unit commander recommended that his
request for discharge be approved with a UD.  On an unknown date, the
separation authority approved separation with a UD.

11.  The applicant's DD Form 214 (Report of Separation from Active Duty)
shows that on 20 June 1974, the applicant was separated under the
provisions of chapter 10, Army Regulation 635-200 with a UD in pay grade E-
1.  He had completed 2 years, 2 months and 13 days of active military
service and he had 294 days of lost time due to being AWOL prior to his
normal expiration of term of service (ETS) date.  He also had 1,562 days of
lost time subsequent to his normal ETS date.

12.  There is no evidence that the applicant ever applied to the Army
Discharge Review Board for review of his discharge under that board's 15-
year statute of limitations.
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.  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 a UD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions
of chapter 10, Army Regulation 635-200, for the good of the service to
avoid trial by court-martial was administratively correct and in
conformance with applicable regulations.  There is no indication that the
request was made under coercion or duress.  The type of discharge directed
and the reasons for discharge were appropriate considering the facts of the
case.

2.  The applicant's conduct was inconsistent with the Army’s standards for
acceptable personal conduct and his overall quality of service does not
warrant an upgrade of his discharge.

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

__aao___  __jtm___  __mmb___  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.



                 Arthur A. Omartian
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003091292                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040226                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |19740620                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 10                      |
|DISCHARGE REASON        |A70.00                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.7000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |