RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 July 2oo5
      DOCKET NUMBER:  AR20040008448


      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. David S. Griffin              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Patrick H. McGann Jr.         |     |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, that his undesirable discharge be
upgraded to honorable and that the reason for his discharge be changed.

2.  The applicant states, in effect, that:

      a.  he was coerced to give a false reason for his absent without
leave (AWOL).  He states they would only allow him to give "a non-
defensible reason of 'fear of being killed in Vietnam.' " at the time he
was returned to military control;

      b.  the real reason he was AWOL was because his orders did not
specify a date to report;

      c.  he went home expecting to receive notification but was not
contacted until
7 years later, when he was incarcerated and out-processed for AWOL status;
and

      d.  he was not released until he gave a false reason for his absence
under great mental strain.

3.  The applicant provides a copy of Headquarters, U.S.  Army Training
Center, Infantry Fort Dix, New Jersey, Special Orders Number 337, dated 2
December 1968.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 18 February 1976, the date of his discharge.  The application
submitted in this case is dated 30 September 2004 and was received 13
October 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 military records show that he was inducted on 2 April
1968 for a period of 2 years.  The highest grade held by the applicant was
private/pay grade E-2.
4.  Special Orders Number 337 stated that the applicant was received at
Headquarters, U.S. Army Training Center, Fort Dix on 30 November 1968, from
a leave status and without funds.  The Orders directed that the applicant
was to proceed immediately to the U.S. Army Oversea Replacement Station at
Fort Lewis, Washington for further movement to his parent unit.  The orders
directed use of a TR (transportation request) and meal tickets.

5.  The records show that the applicant was AWOL and dropped from the rolls

on 2 January 1969.  On 20 January 1976, he was apprehended by the Federal
Bureau of Investigation (FBI) and returned to military control.

6.  On 22 January 1976, the applicant was charged with being AWOL during
the period from 2 January 1969 to 21 January 1976.

7.  On 26 January 1976, the applicant signed his request for discharge for
the good of the service showing that he was making the request of his own
free will and acknowledging that he was guilty of the offense with which he
was charged.  He further acknowledged that he was afforded the opportunity
to speak with counsel prior to making this request.  In his request, the
applicant acknowledged that he was advised he may be furnished an
Undesirable Discharge Certificate; that he will be deprived of many or all
Army benefits; that he may be ineligible for many or all Veterans
Administration benefits; and that he may expect to encounter substantial
prejudice in civilian life because of an undesirable discharge.

8.  On 2 February 1976, the appropriate authority approved the applicant's
request for discharge for the good of the service, directed that the
applicant be reduced to private/pay grade E-1, and that he be furnished an
Undesirable Discharge Certificate.

9.  On 18 February 1976, the applicant was discharged under the provisions
of Chapter 10 of Army Regulation 635-200, due to conduct triable by court
martial.
He had completed 9 months and 28 days of active service.  He had 2573 days
time lost, 2119 days of which was subsequent to his expiration of term of
service.

10.  The applicant applied to the Army Discharge Review Board (ADRB) to
upgrade his discharge.  On 3 May 1979, the ADRB reviewed and denied the
applicant's request for upgrade.  The ADRB found that fear of death or
injury is a normal reaction but cannot be considered as a basis for excusal
of an unauthorized absence of 7 years.  The ADRB determined that the
applicant's discharge was proper and equitable and that the discharge was
properly characterized as under other than honorable conditions.

11.  On 16 July 1981, the applicant applied again to the ADRB to upgrade
his discharge.  On 17 November 1981, ADRB reviewed and denied the
applicant's request for upgrade.  The ADRB found that the applicant was
advised in 1970 to report in but he chose not to do so.  His decision to
"let sleeping dogs lie" showed willfulness to remain away.  The ADRB also
found that because the President of the United States program of clemency
for deserters was so well publicized, it was obvious that applicant chose
not to return.  The ADRB concluded that  the applicant's AWOL was willful
and that he hoped to forever escape the consequences.  The ADRB determined
that the applicant's discharge was proper and equitable and that the
discharge was properly characterized as under other than honorable
conditions.

12.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the
3-year limit on filing to the Army Board for Correction of Military Records
(ABCMR) should commence on the date of final action by the ADRB.  In
complying with this decision, the ABCMR has adopted the broader policy of
calculating the 3-year time limit from the date of exhaustion in any case
where a lower level administrative remedy is utilized.

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations) sets forth the basic authority for the administrative
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 undesirable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be
upgraded to a honorable discharge and that the reason for his discharge be
changed.

2.  The applicant also contends that he had not been contacted by the Army
for
7 years, that upon apprehension he was coerced to give a false reason for
his AWOL and that his orders did not specify what date he was to report to
Fort Lewis.
3.  Upon being reported AWOL and dropped from the rolls, the applicant's
pay would have automatically stopped.  The Board determined that after not
receiving any pay, a reasonable person would contact the Army for
verification of his status.  The evidence shows that the applicant had not
less than two opportunities to turn himself in and instead chose to remain
AWOL.

4.  There is no evidence of coercion on the part of military or civilian
authorities concerning the applicant's statement as to why he was AWOL.

5.  Special Orders Number 337 specifically directed that the applicant
proceed immediately to Fort Lewis for further movement to his ultimate
destination.  The applicant was provided transportation and meal tickets in
order for him to comply with these orders.

6.  Rather than facing the consequences of a trial by court-martial, the
applicant submitted a request for discharge for the good of the service, in
lieu of trial by court-martial.  Although he may now believe that he made
the wrong choice, he should not be allowed to change his mind at this late
date.

7.  The applicant voluntarily requested discharge, admitted his guilt, and
acknowledged that he could discharged under other than honorable conditions
and furnished an Undesirable Discharge Certificate.

8.  The ABCMR does not upgrade discharges based solely on the passage of
time or good post service conduct.

9.  The applicant’s voluntary request for separation under the provisions
of Army Regulation 635-200, Chapter 10, for the good of the service to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.

10.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.  The records contain no
indication of procedural or other errors that would tend to jeopardize his
rights.

11.  In order to justify correction of a military record the applicant
must, 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.

12.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 17 November 1981.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 16 November 1984.  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 file in this.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___lds __  ___lgh___  ____phm_  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.




                                  __Linda D. Simmons_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040008448                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050726                                |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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