RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 May 2005
      DOCKET NUMBER:  AR20040006266


      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             |
|     |Ms. Prevolia Harper               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Leonard G. Hassell            |     |Member               |
|     |Ms. Laverne V. Berry              |     |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 undesirable discharge be upgraded to a
fully  honorable discharge.

2.  The applicant provides no statement regarding his contentions.

3.  The applicant provides a letter of support from his wife, a copy of his
DD Form 214 (Armed Forces of the United States Report of Transfer or
Discharge, a copy of his Undesirable Discharge Certificate, and a letter,
dated 14 October 1970.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 8 December 1970, the date of his separation from active duty.
The application submitted in this case is dated 17 August 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 was inducted into the Army of the United States on
6 September 1967.  He completed basic and advanced individual training and
was awarded the military occupational specialty 11D40 (Armor Intelligence
Specialist).  He was honorably discharged on 10 June 1969 after completing
1 year, 9 months, and 5 days of service.  The applicant reenlisted on
11 June 1969 for a period of 6 years.  He was discharged on 8 December 1970
under other than honorable conditions for this period of service.

4.  Records show that the applicant was absent without leave (AWOL) for the
periods 2 July 1969 through 23 August 1970 and 19 October 1970 through
25 October 1970.

5.  The applicant's service personnel records do not contain the facts and
circumstances surrounding his separation process.  The commander's request
to separate the applicant for the good of the service is not available.


6.  On 3 December 1970, the commanding general (CG) at Fort Knox, Kentucky
directed that the applicant be reduced to the grade of private/pay grade E-
1 and discharged from the Army under provisions of chapter 10 of Army
Regulation 635-200, for the good of the service.  The CG also directed that
the applicant be discharged with an Undesirable Discharge Certificate.

7.  On 8 December 1970, the applicant was discharged from active duty and
issued an Undesirable Discharge Certificate based on chapter 10 of Army
Regulation 635-200.  He completed 3 months and 9 days of active duty with
445 days of lost time due to AWOL.

8.  Block 11c (Reason and Authority) of the applicant's DD Form 214
contains the
entry AR 635-200 "SPN" [Separation Program Number] 246 Discharge for the
Good of the Service."

9.  The applicant submitted a copy of a statement dated 14 October 1970.
This statement was submitted by the applicant during his discharge
processing.  The applicant stated, in part, that upon his return from
Vietnam, he was assigned to Headquarters and Headquarters Company, 4th
Battalion, 69th Armor at Fort Benning, Georgia.  He continued that he spent
five very difficult months there and although he tried, he had problems
with his unit at Fort Benning despite his excellent conduct and efficiency
ratings prior to going AWOL.

10.  The applicant further acknowledged in his statement that he went AWOL
from 2 July 1969 to 22 August 1970, and was unable to return during the
last
previous 8 months of AWOL because he was in the Tuscarawas County Jail in
Ohio.  The applicant continued that, in light of his service prior to going
AWOL, his reason for going AWOL, and being in jail for 8 months during his
AWOL, he should be spared the further ordeal of a court-martial.  He
concluded that for the foregoing reasons, he believed that a discharge
under the provisions of Army Regulation 635-200 would be both in his own
interest and for the good of the Government.

11.  In support of his application, the applicant submitted a letter of
support from his wife in which she stated that she met the applicant after
he returned from Vietnam.  She continued that the applicant was
experiencing a lot of stress which caused him to go AWOL.

12.  The applicant's wife further stated that she reviewed the applicant's
military service documents and he was a good Soldier.  She further
explained that the applicant has never been in any trouble since his
release from the Army and she hoped that everything would be considered in
the final decision.

13.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separation) 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.  An undesirable discharge was
normally considered appropriate.

15.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

16.  Army Regulation 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 the soldier’s
separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable
conditions should be upgraded to a fully honorable discharge.

2.  The applicant's request for separation under the provisions of chapter
10 of Army Regulation 635-200, for the good of the service to avoid trial
by court-martial was administratively correct and in compliance with
applicable regulations.

3.  The applicant's complete records are not available.  However, in the
absence of evidence to the contrary, it is presumed that all requirements
of law and regulations were met and the rights of the applicant were fully
protected throughout the separation process.



4.  After a review of the applicant's available record of service, it is
evident that his quality of service did not meet the standards of
acceptable conduct and performance of duty for Army personnel.  Therefore,
he is not entitled to an honorable discharge.

5.  The applicant's record of service shows completion of only 3 months and

9 days of his 6-year obligation and that he had 445 days of lost time.
Therefore, the applicant's service does not warrant upgrade of his
discharge from under other than honorable conditions.

6.  In order to justify a 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 did not submit any evidence that would
satisfy this requirement.

7.  The applicant's statement submitted during his discharge processing
stated that he experienced difficulties with his unit prior to going AWOL.
However, there is no evidence that the applicant sought assistance from his
chain of command.

8.  The applicant's first period of service was satisfactory and he
received an honorable discharge.  However, his second period of service was
not satisfactory in view of his extensive lost time.  Therefore, he is not
entitled to a general discharge.

9.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 December 1970; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 7 December 1973.  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

__jea___  __lgh___  __lvb___  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.



                                        James E. Anderholm
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040006266                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050505                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19701208                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chap 10. . . . .            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.7000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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