RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           17 March 2005
      DOCKET NUMBER:  AR20040003043


      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. John E. Denning               |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 undesirable
discharge (UD).

2.  The applicant states, in effect, that when he reenlisted, he was
promised a tour in Europe.  However, he was instead was put back on orders
for Vietnam.  He claims he had just completed a tour in Vietnam and did not
want to return.  He states that he could not stand to return to Vietnam and
as a result, he went absent without leave (AWOL).

3.  The applicant provides separation documents (DD Forms 214) from two
prior periods of honorable active duty service in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 6 February 1976.  The application submitted in this case
is dated
10 June 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 initially enlisted in the Regular Army and entered active
duty on 5 December 1962.  He was initially trained in and awarded military
occupational specialty (MOS) 177.00 (Missile Crewman).

4.  On 23 May 1965, he was honorably discharged for the purpose of
immediate reenlistment.  The DD Form 214 he was issued at this time
confirms he had completed 2 years, 5 months and 19 days of active military
service at that time.

5.  On 24 May 1965, he reenlisted for six years and on 20 November 1965, he
was awarded MOS 76Y (Supply Specialist).

6.  On 24 March 1968, he was honorably discharged for the purpose of
immediate reenlistment.  The DD Form 214 he was issued for this period of
active duty service shows he completed 2 years, 9 months and 1 day of
active military service on the enlistment and a total of 5 years, 3 months
and 20 days of active military service.  The DD Form 214 he was issued for
this period of active duty service shows that at that point, he had earned
the National Defense Service Medal, Vietnam Service Medal and Vietnam
Campaign Medal.

7.  On 25 March 1968, he reenlisted for six years.  The enlistment contract

(DD Form 4) he completed at this time contains an entry in Item 37
(Remarks) that shows the applicant reenlisting for a short tour in the
United States Army Pacific (USARPAC).  A Statement for Enlistment (TAA Form
628) completed in conjunction with this reenlistment contains a hand
written statement from the applicant that confirms he was reenlisting for
six years, for a USARPAC short tour.  The applicant authenticated both the
DD Form 4 and TAA Form 628 with his signature.

8.  The applicant’s record shows he was AWOL from 2 through 3 April 1968.
There is no indication that he was punished for this offense.

9.  The applicant again departed AWOL on 2 June 1968.  He remained away for
26 days until returning to military control on 28 June 1968.  He accepted
nonjudicial punishment (NJP) under the provisions of Article 15 of the
Uniform Code of Military Justice (UCMJ) for this period of AWOL.  His
punishment included a reduction to private first class (PFC) and forfeiture
of $30.00.

10.  On 10 April 1969, Los Angeles, California civil authorities arrested
the applicant for the possession of marijuana.

11.  On 27 February 1970, the applicant was convicted of two specifications
of violating Article 86 of the UCMJ by being AWOL from on or about 5 August
through on or about 6 September 1969 and from on or about 15 September
1969 through on or about 1 February 1970.  The resultant sentence included
confinement at hard labor for six months and a reduction to private/E-1
(PV1).

12.  The record shows the applicant was again AWOL from 3 through
25 February 1970 and from 4 March 1970 through 14 July 1975.

13.  On 15 December 1975, the applicant was notified by his unit commander
that his separation under the under the provisions of chapter 15, Army
Regulation 635-200 based on his being AWOL for one or more years was being
considered.

14.  The applicant consulted with legal counsel and was advised of the
basis for the contemplated separation action and its effects, the rights
available to him and the effect of a waiver of those rights.  Subsequent to
this counseling, the applicant waived the following rights:  consideration
of his case by a board of officers, personal appearance before a board of
officers and representation by counsel.  He also elected to submit a
statement on his own behalf.

15.  In the statement he submitted during the separation process, the
applicant indicated, in effect, that he joined the Army at 17 because he
had no other place to go and it was his only option.  He completed 3 years
and reenlisted for six years, but the Army was never his way of life.  He
felt there was nothing else to do but stay in the Army.  He claimed that he
served in Germany for two years and returned to the United States to move
to Vietnam.  He served in combat in Vietnam for a year and while there, his
wife, whom he had married in Germany, divorced him.  He stated that upon
his return to the United States he reconnected with his brothers and sister
after 20 years.  He stated that his attitude softened and he met his
current wife.  He was married and did not report for movement to his
assignment in Thailand.  He remained AWOL until being apprehended and
returned to military control.  He again went AWOL and while in that status
he worked to support his family.  He stated he would accept an UD and
understood he would lose benefits, but his family meant more to him than
anything.  He stated that if he were returned to duty, he would definitely
go AWOL again to be with his family.  He requested discharge confirmed he
would accept an UD.

16.  On 21 January 1976, the separation authority directed the applicant’s
separation under the provisions of chapter 15, Army Regulation 635-200 and
that he receive an UD.  On 6 February 1976, the applicant was discharged
accordingly.  The DD Form 214 he was issued confirms he completed 10 months
of creditable active military service on his current enlistment and that he
accrued 2567 days of time lost due to AWOL and confinement.

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

18.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 15, in effect at the time,
provided for the separation of members for misconduct based on AWOL and
desertion for a period of more than 1 year.  An UD was normally considered
appropriate for members separating under these provisions of the
regulation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he reenlisted with the understanding
that he would receive a European assignment was carefully considered.
However, the evidence of record confirms he reenlisted for a USARPAC short
tour and that he went AWOL instead of reporting for movement to his
assignment in Thailand.

2.  The evidence of record further confirms that the applicant was
separated for misconduct based on his being AWOL for a period of more than
one year.  It further confirms his separation processing was accomplished
in accordance with the applicant regulation in effect at the time.  All
requirements of law and regulation were met and that the rights of the
applicant were fully protected throughout the separation process.  Finally,
it is concluded that the applicant’s discharge was appropriate given his
extended period of AWOL and his lack of desire to return to duty, as
expressed in the statement he completed during his discharge processing.

3.  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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 February 1976.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 5 February 1979.  However, he failed to 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

___JED_  ___JRS__  ___MJF__  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.




            ____John E. Denning____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040003043                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/03/17                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1976/02/06                              |
|DISCHARGE AUTHORITY     |AR 635-200 C15                          |
|DISCHARGE REASON        |Misconduct-AWOL of more than 1 yr.      |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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