RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        2 June 2005
      DOCKET NUMBER:  AR20040005500


      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. Paul Wright                   |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Thomas E. O'Shaughnessy, Jr.  |     |Member               |
|     |Ms. Marla J. N. Troup             |     |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 an upgrade of his Undesirable Discharge.

2.  The applicant states he was discharged after being absent without leave
(AWOL).  He was AWOL because he developed a drug habit in Vietnam.  He was
20-21 years old and easily swayed to accept drugs while trying to fit in.
He has been drug free over 20 years and has no police record other than one
misdemeanor.  Additionally, he adds he did not attend any drug clinic
because he quit on his own.

3.  The applicant provides no evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 17 December 1975.  The application submitted in this case
is dated 28 July 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.  On 23 May 1967, the applicant enlisted in the Regular Army for a period
of 3 years.  The applicant's records are somewhat incomplete, but it
appears that he completed all required training and was assigned military
occupational specialty (MOS) 76Y20, Unit Supply Specialist.

4.  Apparently, the applicant served in Vietnam during the time frame
December 1968 through December 1969.  This is supported by his award of the
Army Commendation Medal while being assigned to the US Army Supply Company,
15th Supply and Service Battalion (Airmobile).

5.  On 24 January 1968, the applicant accepted non-judicial punishment
(NJP), under the provisions of Article 15, Uniform Code of Military
Justice, for being AWOL 13-23 January 1968.  Punishment included 7 days'
extra duty and 7 days' restriction.
6.  On 24 March 1969, the applicant accepted NJP for failing to obey a
lawful order from an officer.  Punishment included restriction for 14 days,
2 hours of extra duty per night for 14 days, and forfeiture of $30.00 per
month for 1 month.

7.  On 4 November 1975, court-martial charges were preferred against the
applicant for being AWOL from 1 March 1970 through 4 November 1975.

8.  On 4 November 1975, the applicant requested discharge for the good of
the service under the provisions of chapter 10, Army Regulation 635-200
after consulting with counsel.  He submitted a statement in his own behalf.

9.  The applicant's company and battalion commanders both recommended
approval of the request with the issuance of an Undesirable Discharge.

10.  On 12 November 1975, the applicant completed a separation physical and
was found qualified for separation.

11.  On 24 November 1975, the General Court-Martial Convening Authority
approved the discharge and directed the issuance of an Undesirable
Discharge and immediate reduction to pay grade E-1.

12.  On 17 December 1975, the applicant was separated with an Undesirable
Discharge.  He was credited with 2 years, 9 months and 28 days of active
federal service.  He had 2084 days of lost time and 27 days of excess
leave.

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 an Undesirable Discharge.

14.  Evidence of record indicates the applicant apparently applied for a
review of his discharge by Army Discharge Review Board (ADRB) under the
provisions of the Department of Defense (DOD) Special Discharge Review
Program (SDRP) on 17 May 1977.  He was found not eligible for this program
on 23 May 1977.  He was so advised and provided an application for a
regular review of his discharge with the ADRB.  There is no evidence he
ever applied for a regular review of his discharge with the ADRB.

15.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the 3 year limit on filing to the
Army Board for Correction of Military Records (ABCMR) should commence on
the date of final action by the ADRB.  In complying with this decision, the
ABCMR has adopted the broader policy of calculating the 3-year time limit
from the date of exhaustion in any case where a lower level administrative
remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s voluntary request for separation under the provisions
of chapter 10, AR 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.

2.  There is no evidence in the applicant's records that he had a drug
problem and he has not provided any evidence to support his claim.

3.  Even though the applicant served a tour of duty in Vietnam, it is
diminished by his lengthy period of AWOL upon his return to the continental
United States.  Therefore, it is not in keeping with the Army standards
expected of an individual with his time and grade.  Consequently, there is
no basis to warrant an upgrade of his discharge.  Additionally, if he had a
drug related problem, he could have sought treatment instead of resorting
to a lengthy AWOL.

4.  Records show the applicant petitioned the ADRB for a review of his
discharge under the SDRP and was found not qualified on 23 May 1977 and
provided the opportunity for a normal review.  He did not avail himself of
that opportunity and, as a result, the time for the applicant to file a
request for correction of any error injustice to this Board expired on 22
May 1980.  However, the applicant did not file within the ABCMR's 3-year
statute of limitations and has not provided 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

__fe____  __teo___  __mjnt__  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.



                                        Fred Eichorn
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040005500                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050602                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19751217                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chap 10                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.7000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]