RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 April 2005
      DOCKET NUMBER:  AR20040007313


      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. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Delia R. Trimble              |     |Member               |
|     |Mr. Richard T. Dunbar             |     |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 be
upgraded.

2.  The applicant states, in effect, that he felt unjustified to apply for
benefits administered by the Department of Veterans Affairs (DVA) until now
due to unexplainable situations.

3.  The applicant provides a DD Form 214 (Armed Forces of the United States
Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 4 August 1972.  The application submitted in this case is dated
3 September 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 enlisted in the Regular Army on 18 December 1969 and
successfully completed basic training and advanced individual training.  He
was awarded military occupational specialty 62B (Engineer Equipment
Repairman).

4.  Records show that the applicant was absent without leave (AWOL) for the
period 16 October 1970 through 14 November 1970.

5.  Records show that the applicant was AWOL for the period 30 December
1970 through 8 July 1972.

6.  Records show that on 9 July 1972 the applicant returned to military
control.

7.  On 19 July 1972, the applicant was advised of the basis for his
separation under the provisions of Army Regulation 635-206 (Discharge
Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence
Without Leave or Desertion)).  The applicant indicated that he consulted
with appropriate counsel, that he waived consideration of his case by a
board of officers, that he did not provide statements on his own behalf,
and that he waived representation by military counsel.

8.  The applicant also indicated that he was aware that as a result of the
issuance of an undesirable discharge that he may be ineligible for any or
all benefits as a veteran under both Federal and state laws and that he may
expect to encounter substantial prejudice in civilian life based on that
undesirable discharge.

9.  On 26 July 1972, the appropriate authority approved the applicant's
discharge under the provisions of Army Regulation 635-206.  On 4 August
1972, he was discharged with an undesirable discharge and a
characterization of service as under other than honorable conditions after
completing 11 months and 27 days of active service with 590 lost days due
to AWOL.

10.  Army Regulation 635-206, in effect at that time, set forth the basic
authority for the separation of enlisted personnel for desertion and AWOL.
Paragraph 47 of the regulation provided, in pertinent part, that Soldiers
discharged by reason of desertion or AWOL would normally receive an
undesirable discharge.

11.  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.

12.  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 Army Board for Correction of Military Records (ABCMR) does not
correct records solely for the purpose of obtaining eligibility for DVA
benefits.  In addition, granting veteran's benefits is not within the
purview of this Board and any questions regarding eligibility should be
addressed to the DVA.

2.  Evidence shows that the applicant was properly and equitably discharged
in accordance with the regulations in effect at the time.

3.  In the absence of evidence to the contrary, it is determined that all
requirements of law and regulations were met and the rights of the
applicant were fully protected throughout the separation process.

4.  The applicant's records show that he had two instances of AWOL.  He had
completed 11 months and 26 days of creditable active service with a total
of 590 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
an honorable or general discharge.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 4 August 1972; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 3 August 1975.  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

__ FE ___  _ DRT __  __RTD __  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                 |AR20040007313                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |21 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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