RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           11 January 2005
      DOCKET NUMBER:  AR20040000399


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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 that his records be corrected to show he was not
absent without leave (AWOL) for 399 days and that he served at least 19
months of overseas service.  He also requests that the characterization of
his service be changed, in effect, to general under honorable conditions.

2.  The applicant states that they have him listed as being AWOL for 399
days.  He was in custody for all except about 3 months.  His records show
he served overseas for 7 months, which is totally wrong.  He was overseas
for at least       19 months.  In addition, he recently saw a television
news clip about a fellow who had been AWOL for over 30 years.  That fellow
finally decided to turn himself in and his son drove him to Fort Knox, KY.
After being there 3 days, he was given a general under honorable conditions
discharge.  He (the applicant) should be judged under the same rules.

3.  The applicant provides a written explanation to his Representative in
Congress, his DD Form 214 (Armed Forces of the United States Report of
Transfer or Discharge); and two character witness statements.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 5 February 1970.  The application submitted in this case
is dated   12 April 2004.

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.  The applicant enlisted in the Regular Army on 17 January 1966.  He
arrived in Germany, U. S. Army Europe (USAREUR) on or about 4 August 1966.
While in Germany, he accepted nonjudicial punishment under Article 15,
Uniform Code of Military Justice for failure to repair.

4.  The applicant requested assignment to Vietnam, departed Germany on
     20 February 1968, and arrived in Vietnam on or about 20 April 1968.

5.  On 6 December 1968, the applicant departed AWOL.  Military authorities
apprehended him on 16 February 1969.  On 25 February 1969, he was
transferred to Fort Knox, KY and placed in military confinement.  When he
was counseled on 25 March 1969, he asked for duty.  On 1 April 1969, his
request was granted.

6.  On 9 April 1969, the applicant was convicted by a special court-martial
of being AWOL from on or about 6 December 1968 to on or about 15 February
1969.  His approved sentence was a reduction to Corporal, E-4.

7.  On 15 April 1969, the applicant departed AWOL.  He was apprehended by
civil authorities and returned to military control on 12 December 1969.

8.  On 13 January 1970, the applicant was referred to Mental Hygiene
Consultation Services for an evaluation for separation under the provisions
of Army Regulation 635-212.  He was found to be mentally responsible and
able to distinguish right from wrong.  He had no disqualifying mental or
physical defects sufficient to warrant disposition through medical
channels.  He was considered to be mentally competent to participate in
board proceedings.

9.  On 16 January 1970, the applicant was convicted by a special court
martial of being AWOL from on or about 15 April to on or about 12 December
1969.  He was sentenced to confinement at hard labor for 5 months, to
forfeit $80.00 pay per month for 6 months, and to be reduced to Private, E-
1.

10.  On an unknown date, the applicant's commander at the U. S. Army
Correctional Hold Detachment, Fort Knox, KY initiated separation action on
him under the provisions of Amy Regulation 635-212 for unfitness.

11.  On 20 January 1970, the applicant was advised of the basis for the
contemplated separation and its effect and the rights available to him.  He
waived consideration of his case by a board of officers, waived personal
appearance before a board of officers, and did not submit statements in his
own behalf.

12.  On 22 January 1970, the applicant's commander recommended the
applicant for separation under the provisions of Army Regulation 635-212
for unfitness.  The applicant's two periods of AWOL, his Article 15, his
two convictions by court martial, and the fact his military supervisors
agreed that further rehabilitation would be futile were cited as the
reasons,.

13.  On 30 January 1970, the appropriate commander accepted the applicant's
waiver of a hearing before a board of officers, waived further
rehabilitation requirements, and directed the applicant be furnished an
Undesirable Discharge Certificate.

14.  On 5 February 1970, the applicant was discharged, in pay grade E-1,
with    an undesirable, under other than honorable conditions discharge
under the provisions of Army Regulation 635-212 for unfitness.  He had
completed 2 years, 11 months, and 5 days of creditable active service.
Item 30 (Remarks) shows he had 399 days of lost time under Title 10, U. S.
Code, section 972.

15.  Item 22c of the applicant's DD Form 214 shows he completed 7 months
and 16 days of foreign service in the U. S. Army Pacific (USARPAC).

16.  On 29 November 1973, the Army Discharge Review Board denied the
applicant's request for a general under honorable conditions discharge and
found that he had been properly discharged.

17.  Army Regulation 635-212, in effect at the time, set forth the basic
authority for the separation of enlisted personnel for unfitness of
unsuitability.  Paragraph 6a(1) of the regulation provided that members
involved in frequent incidents of a discreditable nature with civil or
military authorities were subject to separation for unfitness.  An
undesirable discharge was normally considered appropriate.

18.  Title 10, section 972 (Members:  effect of time lost), subsection (a)
states that an enlisted member who (1) deserts; (2) is absent for more than
1 day without proper authority; (3) is confined by military or civilian
authorities for more than 1 day in connection with a trial, whether before,
during, or after the trial; or (4) is incapacitated for duty due to
intemperate use of drugs or alcohol or because of disease or injury
resulting from his misconduct; is liable to make up that lost time.

DISCUSSION AND CONCLUSIONS:

1.  There is an error in item 22c of the applicant's DD Form 214.  He had
served 1 year, 6 months, and 17 days in USAREUR and 7 months and 17 days in
USARPAC for a total of 2 years, 2 months, and 4 days of foreign service.
Item 22c of his DD Form 214 should be amended to reflect this fact.

2.  Item 30 of the applicant's DD Form 214 correctly reflects he had 399
days of lost time.  It is acknowledged the Army knew where he was.
However, lost time
is not only AWOL time.  Lost time also includes time spent in confinement
awaiting trial (which results in a conviction) and time spent in
confinement as a result of a court-martial sentence.  Both of those
instances, plus his AWOL time, contributed towards his 399 days of lost
time.

3.  The Board evaluates each case on its own merits.  While past actions
(i.e., the granting or denying or relief), may be considered, the Board
does not acknowledge “precedent” cases (or how the Army treated another
Soldier) as such.

4.  The applicant departed AWOL from a combat zone.  Considering this fact,
he could have been given a court-martial sentence that included a punitive
(i.e., bad conduct or dishonorable) discharge.  Instead, he was processed
for an administrative separation that did not include the civil limitations
of a felony conviction.  While he had been awarded a Combat Infantryman
Badge, it does not appear that he was awarded a personal decoration for his
combat services.  There is insufficient evidence on which to base a
recharacterization of his service.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

__lds___  __jtm___  __cak___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief and to excuse failure to timely
file.  As a result, the Board recommends that the DD Form 214 of the
individual concerned be corrected by amending item 22c to show he served 2
years, 2 months, and 4 days of foreign service in USAREUR and USARPAC.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends
denial of so much of the application that pertains to changing the period
of his lost time and to recharacterizing his description of service.




            __Linda D. Simmons
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040000399                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050111                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1970/01/05                              |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |A51.00                                  |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |110.00                                  |
|2.                      |100.00                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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