RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        FEBRUARY 15, 2005
      DOCKET NUMBER:  AR20040001629


      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. Luis Almodova                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Jennifer L. Prater            |     |Chairperson          |
|     |Mr. Thomas A. Pagan               |     |Member               |
|     |Mr. Kenneth W. Lapin              |     |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 be
upgraded to general under honorable conditions.

2.  The applicant states, in effect, that President Ford declared amnesty
at the time of his discharge and he feels that he qualified for this type
of discharge not, the undesirable discharge he received.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice that
occurred on 19 September 1974.  The application submitted in this case is
dated 10 May 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 for 3 years on 5 January
1971.

4.  The applicant was granted a waiver for medical defects to enable his
enlistment in the Army.  The applicant's DD Form 4, in Item 49 (Prior
Service) shows that he served in the Marine Corps from 8 December 1969
through 30 December 1969 and was given an Honorable Discharge.

5.  The applicant completed basic combat training at Fort Leonard Wood,
Missouri, and his advanced individual training (AIT) at Fort Lee, Virginia.
 Upon completion of all required training, he was awarded the Military
Occupational Specialty (MOS) 76P, Stock Control and Accounting Specialist.

6.  On 16 March 1971, the applicant was assigned to the Quartermaster
School, Fort Lee, Virginia.  He was further assigned to Company M, 1st
Battalion, Quartermaster Brigade, and on 13 May 1971, he departed absent
without leave (AWOL) from his unit.  On 25 May 1971, the applicant
surrendered himself to his unit.
7.  On 1 June 1971, the applicant again departed AWOL from his unit.  He
was dropped from the rolls of the organization on the same date.

8.  On 13 August 1974, the applicant was apprehended by civilian
authorities in Xenia, Ohio.  He was returned to military control at the
Special Processing Company, US Army Personnel Control Facility, US Army
Armor Center, Fort Knox, Kentucky, on 15 August 1974.

9.  The applicant’s record is void of facts and circumstances [the
applicant's discharge "packet"] concerning events that led to his discharge
from the Army.

10.  In an undated letter in the applicant's service personnel records,
presumably submitted for consideration with his request for discharge for
the good of the service to avoid trial by court-martial, the applicant
states, in pertinent part, "I asked for a leave to go home and get married
but was refused.  And was told that I would have to attend another school
at AIT.  All I wanted to do was go to work.  For I never did like school as
a civilian.  I had a few spats with some people in my barracks.  So finally
I decided to go home and get married any way. For I was used to doing what
I wanted to do and going where I want."  He continues by adding that, "My
company commander said I would probably get a summary court-martial and put
me in a detail, holdover barracks.  I received letters from my wife that
she was already upset with our marriage and my family said she was talking
about a divorce.  So I left and went AWOL again.  Later on we really had it
out and she left me and divorced me.  At the present my attitude towards
the Army is not to good.  All I want is out of the Army.  If my application
for discharge is not approved, I think the Army will be wasting its time
and money.  For I know in my own mind the way I feel towards the Army now
that I could never do a good job in the Army or accomplish any thing but
getting into more trouble."

11.  The applicant records contain a copy of Special Orders Number 192,
paragraph 293, published by Headquarters, US Army Armor Center and
Fort Knox, dated 16 September 1974.  These orders are the authority for the
discharge of and issuance of an Under Other than Honorable Conditions
Discharge, Department of Defense Form 258A, to the applicant.

12.  The applicant was discharged in the rank and pay grade of Private, E-
1, on 19 September 1974, under the provisions of Army Regulation (AR) 635-
200, Chapter 10.  The Separation Program Designator Code (SPD) KFS (In Lieu
of Trial by Court-Martial) was applied to the applicant's DD Form 214.  The
applicant's service was characterized as, "Under Other than Honorable
Conditions."
13.  On the date of his discharge, the applicant had completed 5 months,
and 24 days, active military service, with 958 days lost prior to normal
ETS (expiration term of service) and 220 days lost subsequent to normal
ETS.

14.  Item 26 (Decorations, Medals, Badges, Commendations, Citations, and
Campaign Ribbons Awarded or Authorized), of the applicant's DD Form 214,
Armed Forces of the United States, Report of Transfer or Discharge, shows
that he was awarded the National Defense Service Medal, the Sharpshooter
Marksmanship Qualification Badge, with Automatic Rifle Bar (M-16 Rifle);
and the Expert Marksmanship Qualification Badge, with Hand Grenade Bar.
The record contains no documentary evidence of acts of valor, achievement,
or service warranting special recognition.

15.  There is no evidence that the applicant applied to the Army Discharge
Review Board (ADRB) for an upgrade of his discharge in its 15-year statute
of limitations.

16.  AR 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 submit, at any time
after the charges have been preferred, 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, but the
separation authority may direct a general discharge or an honorable
discharge if such is merited by the soldier's overall record and if the
soldier's record is so meritorious that any other characterization clearly
would be improper.

17.  AR 635-200, paragraph 3-7, provides that a general discharge is a
separation from the Army under honorable conditions.  When authorized, it
is issued to a soldier whose military record is satisfactory but not
sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for separation specifically allows such characterization.

18.  Presidential Proclamation 4313 was issued by President Ford and
affected three groups of individuals.  These groups were: (1) Fugitives
from justice who were draft evaders; (2) Members of the Armed Forces who
were in an unauthorized absence status; and (3) prior members of the Armed
Forces who had been discharged with a punitive or undesirable discharge for
violation of Articles 85, 86, or 87 of the Uniform Code of Military
Justice.  The individuals who were absent from the Armed Forces were
afforded an opportunity to return to military control and elect either an
Undesirable Discharge under PP 4313 or to stand trial for their offenses
and take whatever punishment resulted.  For those who elect discharge, a
Joint alternate Service Board composed of military personnel would
establish a period of alternate service of not more than 24 months that the
individuals would perform.  If the individuals completed the service
satisfactorily, they would be entitled to receive a Clemency Discharge.
The third group could apply to the Presidential Clemency board which was
made up of individuals appointed by the President (members were civilians,
retired military and members of the Reserve Components) who would make a
similar determination regarding the performance of alternate service.  Both
the Joint Board and Presidential Board were authorized to award a Clemency
Discharge with the performance of alternate service.  In practice, the
Joint Board did not take such action while the Presidential Board did in
many cases.  The dates of eligibility for consideration under PP 4313 for
those already discharged from the military service were 4  August 1964 to
28 March 1973 inclusive.  Alternate Service was to be performed under the
supervision of the Selective Service System.  The individual was
responsible for finding a job that met the requirements of the program.  He
would obtain the approval of his state Selective Service officials
regarding the job and reports would be furnished periodically as to how he
was performing.  When the period of alternate service was completed
satisfactorily, the Selective Service System notified the individual’s
former military service.  The military service issued the actual Clemency
Discharge.  The Clemency Discharge did not effect the underlying discharge
and did not entitle the individual to any benefits administered by the
Veterans Administration.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record is void of nearly all documents related to his
application and approval for discharge from the Army.

2.  The applicant’s entire record of service was reviewed.  The record
contains no documentary evidence of acts of valor, achievement, or service
warranting special recognition and an upgrade of his undesirable discharge.

3.  Under Presidential Proclamation 4313 members of the Armed Forces who
were in an unauthorized absence status were afforded the opportunity to
return to military control and elect either an undesirable discharge or
stand trial for their offense and take whatever punishment resulted.  There
is no evidence that the applicant applied for consideration of his case
under Presidential Proclamation 4313 and, had he done so, he, it is
reasonable to assume, would have received the same type of discharge.

4.  The undated letter written by the applicant, assumedly in conjunction
with his request for discharge, shows that he was pending trial by courts-
martial for his unauthorized absences.  It can also be assumed that this
request was approved to enable his discharge from the Army in view of the
authority cited in his DD Form 214.

5.  The applicant’s record contains a properly constituted DD Form 214,
which was authenticated by the applicant.  This document identifies the
reason and characterization of the discharge and the Board presumed
government regularity in the discharge process.

6.  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 this requirement.

7.  In view of the foregoing, there is no basis for granting the
applicant's request for an upgrade of his undesirable discharge.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 19 September 1974; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 18 September 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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

jlp  _____  tap_____  kwl   _____  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.




                                  __   _Jennifer L. Prater___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040001629                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050215                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19740919                                |
|DISCHARGE AUTHORITY     |AR 635-200, chapter 10                  |
|DISCHARGE REASON        |In Lieu of Trial by Court-Martial       |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  360  |144.0000                                |
|2.  394                 |144.0133                                |
|3.  404                 |144.0143                                |
|4.  412                 |144.0151                                |
|5.                      |                                        |
|6.                      |                                        |


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