RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           31 March 2005
      DOCKET NUMBER:  AR20040003412


      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. William D. Powers             |     |Chairperson          |
|     |Mr. Ronald J. Weaver              |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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 (UD)
be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he was experiencing many personal
and family problems that impaired his ability serve at the time of his
discharge.

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


CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 16 February 1970.  The application submitted in this case
is dated 21 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 limitations 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’s record shows that he was inducted into the Army and
entered active duty on 25 April 1969.  He successfully completed basic
combat training at Fort Bragg, North Carolina and advanced individual
training (AIT) at Fort Dix, New Jersey.  Upon completion of AIT, he was
awarded military occupational specialty (MOS) 11B (Infantryman) and placed
on orders to report to Fort Lewis, Washington, for movement to the Republic
of Vietnam (RVN).

4.  The applicant’s record shows he was advanced to the rank and pay grade
of private/E-2 on 25 August 1969 and that this is the highest rank he
attained while serving on active duty.  His record documents no acts of
valor, significant achievement or service warranting special recognition.
5.  On 17 September 1969, after failing to report for movement to the RVN,
the applicant was declared absent without leave (AWOL).  On 16 October
1969, he was dropped from the rolls of his organization.  He remained AWOL
until
17 January 1970, when he was returned to military control at Fort Meade,
Maryland.

6.  On 23 January 1970, a Charge Sheet (DD Form 458) was prepared
preferring a court-martial charge against the applicant for violating
Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL
from on or about 17 September 1969 through on or about 17 January 1970.

7.  On 27 January 1970, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
effects of an UD and of the rights available to him.  Subsequent to
receiving this legal counsel, the applicant voluntarily requested discharge
for the good of the service, in lieu of trial by court-martial.

8.  In his request for discharge, the applicant acknowledged he understood
that if his discharge request was approved, he could be deprived of many or
all Army benefits, that he could be ineligible for many or all benefits
administered by the Department of Veterans Affairs (VA), and that he could
be deprived of his rights and benefits as a veteran under both Federal and
State law.  He further indicated that he understood that he could encounter
substantial prejudice in civilian life by reason of an UD.

9.  The applicant’s request for discharge was approved and on 16 February
1970, he was separated from active duty with an UD.  The separation
document (DD Form 214) he was issued confirms he completed a total of 5
months and
20 days of creditable active military service, and that he had accrued 122
days of time lost due to AWOL.  The separation document also shows that
during his active duty tenure, he earned the National Defense Service Medal
and Expert Qualification Badge with Rifle Bar.

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


11.  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 UD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he experienced personal family problems
that impaired his ability to service was carefully considered.  However,
this factor is not sufficiently mitigating to warrant granting the
requested relief.

2.  The evidence of record confirms that the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, the applicant voluntarily
requested discharge from the Army in lieu of trial by court-martial.  All
requirements of law and regulation were met, the rights of the applicant
were fully protected throughout the separation process and his discharge
accurately reflects his overall record of short and undistinguished
service.

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 16 February 1970.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 15 February 1973.  However, he 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

___MDP_  ___RJW _  __LGH__  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.




            ____William D. Powers_____
                    CHAIRPERSON



c

                                    INDEX

|CASE ID                 |AR20040003412                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/03/31                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1970/02/16                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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