RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 May 2005
      DOCKET NUMBER:  AR20040006657


      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. Betty A. Snow                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret V. Thompson          |     |Chairperson          |
|     |Mr. John T. Meixell               |     |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, upgrade of his undesirable discharge
(UD) to an honorable discharge (HD).

2.  The applicant states, in effect, that he was absent without leave
(AWOL) because he had to assist his father with a land dispute that had
become dangerous and life threatening.

3.  The applicant also states, in effect, that he has incurred several
injuries since his military service and that these injuries make it
difficult for him to continue work as a laborer.  The applicant concludes
that his UD has made it difficult for him to obtain medical benefits.

4.  The applicant provides a one-page self-authored statement in support of
this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 29 September 1970.  The application submitted in this
case is dated 4 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’s record shows that he was inducted into the Army and
entered active duty on 16 January 1968.  He completed basic combat training
and was awarded the military occupational specialty 94A10 (Cook).

4.  The applicant’s record shows that he entered active duty as a private/E-
1 (PV1) and was advanced to the grade of private first class/E-3 (PFC).
The record documents no acts of valor, significant achievement or service
warranting special recognition.  It does include a disciplinary history
that includes three periods of AWOL, two periods of confinement, and one
conviction by a special court-martial (SPCM).

5.  On 13 September 1968, the applicant departed AWOL from his unit at
Fort Lewis, Washington.  He remained away for 136 days until returning to
military control at Fort Jackson, South Carolina on 22 January 1969.

6.  On 28 February 1969, a SPCM found the applicant guilty of violating
Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL
from
13 September 1968 through 22 January 1969.  The resultant sentence included
a reduction in grade to PV1, confinement at hard labor for six months, and
a forfeiture of $73.00 per month for six months.

7.  While stationed in Germany with the Headquarters and Headquarters
Company, 12th Engineer Battalion, the applicant departed AWOL from his unit
on 22 January 1970.  He was dropped from the rolls of the organization on
24 February 1970.  He remained AWOL for 61 days until returning to military
control at Fort Jackson on 23 March 1970.

8.  On 25 May 1970, the applicant departed AWOL from the Special Processing
Detachment, Fort Jackson.  He remained away for 56 days until returning to
military control at Fort Jackson on 19 July 1970.

9.  On 30 July 1970, a Charge Sheet (DD Form 458) was prepared preferring a
court-martial charge against the applicant for four specifications of
violating Article 86 of the UCMJ by being AWOL on the following occasions:
from on or about 22 January 1970 through 24 March 1970; from on or about 6
April 1970 through on or about 8 April 1970; from on or about 21 April 1970
through on or about 28 April 1970; and from on or about 25 May 1970 through
on or about
18 July 1970.

10.  On 30 July 1970, the applicant declined the opportunity to consult
with counsel and was advised of the basis for the contemplated trial by
court-martial, the maximum permissible punishment authorized under the
UCMJ, the possible effects of an UD and of the procedures and rights that
were available to him by his unit commander.  Subsequent to this
counseling, he voluntarily requested discharge for the good of the service,
in lieu of trial by court-martial.

11.  In his request for discharge, the applicant also indicated that he
understood that by requesting discharge, he was admitting guilt to the
charges against him, or of a lesser included offense, that also authorized
the imposition of a bad conduct or dishonorable discharge.  He further
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.
12.  On 4 September 1970, the separation authority approved the applicant’s
request for discharge and directed that he receive an UD and be reduced to
the lowest enlisted grade.  On 29 September 1970, the applicant was
discharged accordingly.

13.  The separation document (DD Form 214) the applicant was issued upon
his discharge confirms he completed 1 year, 9 months, and 29 days of
creditable active military service and accrued 291 days of time lost due to
AWOL and confinement.

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

15.  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 contentions that his UD should be upgraded because
personal problems led to his going AWOL and because of medical problems he
is now experiencing were carefully considered.  However, while unfortunate,
these factors are not sufficiently mitigating to warrant an upgrade of his
discharge at this time.

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 being advised of his rights and of the effects of an UOTHC
discharge, 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.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 29 September 1970.  Therefore, the
time for him to file a request for correction of any error or injustice
expired on
28 September 1973.  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

___MVT _  ___JTM _  ___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.




                                  _____Margaret V. Thompson__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040006657                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-05-24                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1970/09/29                              |
|DISCHARGE AUTHORITY     |AR 635-200 Chap 10 . . . . .            |
|DISCHARGE REASON        |Chap 10                                 |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0200.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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