RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 April 2005
      DOCKET NUMBER:  AR20040006977


      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. Michael J. Fowler             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. Larry C. Bergquist            |     |Member               |
|     |Mr. Larry J. Olson                |     |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
general or honorable discharge.

2.  The applicant states, in effect, that he has two honorable discharges
prior to his separation and that he was young and immature.

3.  The applicant further states that he has a service connected hearing
loss that occurred while he was in Vietnam and he is unable to receive
veteran benefits because of his discharge.

4.  The applicant provides no documentation in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 7 July 1970.  The application submitted in this case is dated
30 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.  On 2 January 1938, the applicant was born.  He enlisted in the Regular
Army on 20 January 1955 and was honorably discharged on 17 January 1958.
He had a break in service and enlisted in the Regular Army on 18 July 1966
and successfully completed basic training and advanced individual training
(AIT).  He was awarded military occupational specialty 13B (Field Artillery
Crewman).

4.  The applicant was honorably discharged on 8 July 1968.  His DD Form 214
(Armed Forces of the United States Report of Transfer or Discharge)
erroneously shows that he reenlisted on the same day.  His DD Form 4
(Enlistment Record - Armed Forces of the United States) shows his correct
reenlistment date of  9 July 1968.

5.  Records show that the applicant served with A Battery, 5th Howitzer
Battalion, 27th Field Artillery in Vietnam from 26 January 1967 through 8
September 1968.



6.  On 18 November 1969, the applicant was convicted by a special court-
martial of being absent without leave (AWOL) for the period 30 October 1969
through 7 November 1969.  He was sentenced to reduction to the grade of
Private First Class/E-3.

7.  Records show that the applicant was AWOL for the period 16 March 1970
through 9 June 1970.

8.  The applicant's charge sheet is not available.

9.  The applicant's request for discharge for the good of the service
packet is not available.

10.  The applicant's service personnel records do not contain the facts and
circumstances surrounding his separation process.  However, his DD Form 214
shows that he was discharged on 7 July 1970 under the provisions of chapter
10 of Army Regulation 635-200 (Personnel Separations) by reason of "For the
Good of the Service" with a characterization of service of under other than
honorable conditions.  The applicant completed 6 years, 7 months, and
6 days of creditable active service with 123 days lost time due to AWOL.

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.
At the time, an undesirable discharge was normally considered appropriate.

12.  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.

13.  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's prior service achievements and conduct are noteworthy.
However, prior good military service conduct alone is not a basis for
upgrading a discharge, and upon review, the applicant's good prior service
conduct is not sufficient to mitigate his indiscipline in the Army during
his last enlistment.

2.  Records show that the applicant was 31 years old at the time his
misconduct began during his third term of enlistment and that he knew the
Army's standards of conduct.  Therefore, his contention that he was young
at the time of his misconduct does not mitigate his indiscipline.

3.  The applicant contends that he has a service connected hearing loss
that occurred while he was in Vietnam.  There is no evidence in the
applicant's service records and the applicant has provided no evidence that
supports this contention.  However, the ABCMR does not correct records
solely for the purpose of obtaining eligibility for Department of Veterans
Affairs benefits.

4.  The applicant's records show that he received one special court-martial
and had two instances of AWOL during his last enlistment.  The applicant
had completed 1 year, 7 months, and 29 days of his 6-year reenlistment with
a total of 123 lost days due to AWOL.  Based on these facts, the
applicant’s service clearly did not meet the standards of acceptable
conduct and performance of duty for Army personnel which are required for
issuance of a general or honorable discharge.

5.  In the absence of evidence to the contrary, it is presumed that the
applicant's separation was accomplished in compliance with applicable
regulation and without procedural errors that would jeopardize his rights.
Therefore, it is concluded that the characterization of the applicant’s
discharge was proper and equitable.

6.   Records show the applicant should have discovered the alleged error or
injustice now under consideration on 7 July 1970; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 6 July 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

__ RJW  _  __LCB  _   __ LJO _   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.




                                  ____ Raymond J. Wagner_
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040006977                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |19 April 2005                           |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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