RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 April 2005
      DOCKET NUMBER:  AR20040008566


      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. John Infante                  |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Mr. Peter B. Fisher               |     |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 served in Vietnam and deserves
to be compensated for injuries or decease incurred during his wartime
service.  He admits going absent without leave (AWOL) while on emergency
leave was a mistake and feels that a bar to his Department of Veterans
Affairs (VA) benefits is too severe.

3.  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 28 April 1971.  The application submitted in this case is dated
30 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 19 September 1968 and
successfully completed basic training and advanced individual training
(AIT).  He was awarded military occupational specialty 57H (Cargo Handler).

4.  The applicant was honorably discharged on 17 July 1969.  His DD Form 4
(Enlistment Record - Armed Forces of the United States) shows he reenlisted
on 18 July 1969 for a six year term of service.

5.  On 27 January 1970, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for two
specifications of failure to be at his prescribed place of duty and one
specification of sleeping on duty.

6.  Records show that the applicant served with the 870th Transportation
Company in Vietnam from 7 July 1970 through 6 July 1971.

7.  Records show that the applicant was absent without leave from 29
December 1970 through 9 February 1971.

8.  Records show that the applicant was absent without leave from 15 March
1971 through 16 March 1971.

9.  The applicant's medical records are not available.

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

11.  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 28 April 1971 under the provisions of
chapter 10 of Army Regulation 635-200 (Personnel Separations) by reason of
"For Good of the Service."  He was discharged with an undesirable discharge
and a characterization of service as under other than honorable conditions
after completing a total of 2 years, 5 months, and 27 days of creditable
active service with 45 lost days due to AWOL.

12.  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.

13.  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.

14.  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.  Lacking evidence to the contrary, it is presumed that all requirements
of law and regulation were met and that the rights of the applicant were
fully protected throughout the separation process.  Therefore, it is
concluded that the applicant’s discharge was proper and equitable.

2.  The applicant's records show that he received one Article 15 and had
two instances of AWOL during his last enlistment.  The applicant had
completed 1 year, 7 months, and 28 days of his 6-year reenlistment with a
total of 45 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.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 April 1971; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 27 April 1974.  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

__JI____  __REB __  __ PBF __  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.




                                  ___ John Infante ________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040008566                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |28 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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