RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        07 JULY 2005
      DOCKET NUMBER:  AR20040007809


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin Meyer                  |     |Chairperson          |
|     |Mr. Eric Andersen                 |     |Member               |
|     |Ms. Carol Kornhoff                |     |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 records be corrected by upgrading his
discharge.

2.  The applicant states that he went through basic and advanced individual
training without taking any leave.  He went on trial for being absent
without leave (AWOL) at Fort Meade, Maryland, but the charges were
dismissed.  He did not put anything in writing requesting any type of
discharge, in fact, he asked for a court-martial so that he could clear
things up.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 11 January 1971.  The application submitted in this case is
dated 17 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 28 August 1969, for a
period of 2 years.

4.  On 24 November 1969, he accepted nonjudicial punishment (NJP) under the
provisions of Article 15, Uniform Code of Military Justice (UCMJ) for
acting disorderly in Service Club One.  His punishment was restriction,
extra duty, and a forfeiture of pay.

5.  On 3 December 1969, he accepted NJP under the provisions of Article 15,
UCMJ for disobeying his commanding officer’s order to remain at the
company.  His punishment was a forfeiture of pay and extra duty.



6.  On 13 March 1970, he was convicted by a special court-martial of being
AWOL from 17 December 1969 to 2 March 1970.  He was sentenced to hard labor
without confinement for 60 days, restriction for 45 days, and a forfeiture
of pay for 3 months.

7.  On 16 December 1970, his commander preferred court-martial charges
against him for being AWOL from 26 March 1970 to 7 December 1970.

8.  On 16 December 1970, after consulting with legal counsel, the applicant
voluntarily submitted a request for discharge for the good of the service,
under Army Regulation 635-200, Chapter 10, in lieu of trial by court-
martial.  He acknowledged that his request had been submitted of his own
free will with no coercion whatsoever by any person.  He acknowledged that
he understood the effects of receiving an under other than honorable
conditions characterization.  He also acknowledged that he understood that
he may be deprived of many or all Army benefits and that he may be
ineligible for many or all benefits administered by the Veterans
Administration, and that he may be deprived of his rights and benefits as a
Veteran under both Federal and State law.

9.  There are no additional facts and circumstances concerning the
applicant’s discharge proceedings.

10.  On 11 January 1971, the applicant was discharged under the provisions
of Army Regulation 635-200, Chapter 10, with an undesirable discharge,
characterized as under other than honorable conditions.  His DD Form 214
(Armed Forces of the United States Report of Transfer or Discharge)
indicates he had 1 year, 4 months, and 14 days of creditable service, and
338 days of lost time.

11.  Army Regulation 635-200, then in effect, set forth the basic authority
for the separation of enlisted personnel.  Chapter 10 of that regulation
provided, in pertinent part, that a member who had committed an offense or
offenses for which the authorized punishment included a punitive discharge
could at any time after the charges had been preferred, submit a request
for discharge for the good of the service in lieu of trial by court-
martial.  At the time of the applicant’s separation, the regulation
provided for the issuance of an under other than honorable conditions
characterization.






DISCUSSION AND CONCLUSIONS:

1.  The applicant voluntarily requested separation under Army Regulation
635-200, Chapter 10, for the good of the service, to avoid trial by court-
martial.  He was discharged under other than honorable conditions.  The
character of the discharge is commensurate with his overall record of
military service.

2.  There is no evidence in the available records nor did the applicant
provide documentation to substantiate his claim that court-martial charges
against him were dismissed.  In fact, he was convicted by a special court-
martial for being AWOL.

3.  In order to justify 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 has failed to submit evidence that would
satisfy that requirement

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 11 January 1971; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
10 January 1974.  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

___MM__  ___EA  __  ___CK__  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.




                                  ______Melvin Meyer_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040007809                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050707                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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