RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 August 2005
      DOCKET NUMBER:  AR20040008597


      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. G. E. Vandenberg              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Ms. Linda M. Barker               |     |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 discharge be upgraded.

2.  The applicant states he believes he should receive an honorable
discharge.

3.  The applicant provides copies of a certificate and orders for the award
of the Army Commendation Medal, an Ohio Form Number V1 (Application for
Compensation) with 13 documents from his Official Military Personnel File
(OMPF), and his DD Form 214 (Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 13 March 1970, the date of his discharge.  The application
submitted in this case is dated 8 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 record shows he entered active duty on 2 August 1967,
completed training, and was awarded the military occupational specialty
(MOS) 36K (Wireman).

4.  The applicant served in Vietnam with the Headquarters, Headquarters
Company, 9th Infantry Division from 30 December 1967 though 29 December
1968 with promotion to specialist (E-4) on 18 April 1968.

5.  On 24 January 1969 he went AWOL (absent without leave) and remained
absent until he voluntarily returned to military control on 12 January
1970.  Court-martial charges were preferred for this period of AWOL.

6.  After consulting with counsel and being advised of his rights and
options, the applicant submitted a formal request, under the provisions of
Army Regulation 635-200, chapter 10, for discharge for the good of the
service (in lieu of trial by court-martial for an offense punishable by a
bad conduct or dishonorable discharge).  He acknowledged that if the
request was accepted that he could receive an undesirable discharge,
characterized as under other than honorable conditions.  He acknowledged
that such a discharge would deprive him of many or all of his benefits as a
veteran, and that he could expect to experience substantial prejudice in
civilian life.

7.  On 21 February 1970, the separation authority approved the applicant's
request for discharge and directed he be reduced to pay grade E-1 and
issued an Undesirable Discharge (UD) Certificate.

8.  The applicant was discharged on 13 March 1970 under the provisions of
Army Regulation 635-200, chapter 10 with a UD.  He had 1 year, 7 months,
and 24 days of creditable service with 353 days of lost time.  His DD Form
214 lists his authorized awards as only the Expert Badge with Rifle Bar.

9.  Army Regulation 635-200 sets forth the purpose and policies for
enlisted personnel separations.  Chapter 3 outlines the criteria for types
of administrative discharges and characterization of service.  Paragraph 3-
7a states that an honorable discharge (HD) is a separation with honor.  The
honorable characterization of service is appropriate when the quality of
the Soldier’s service generally has met the standards of acceptable conduct
and performance of duty for Army personnel or is otherwise so meritorious
that any other characterization would be clearly inappropriate.  Paragraph
3-7a(2)(b), in pertinent part states: “A Soldier will not necessarily be
denied an honorable discharge solely by reason the number of convictions by
court-martial or actions under the UCMJ Art 15.”  Paragraph 3-7a(2)(c)
states: “It is a pattern of behavior and not the isolated instance which
should be considered the governing factor in determination of character of
service.”  Paragraph 3-7b states that a general discharge (GD) is a
separation under honorable conditions issued to a Soldier whose military
record was satisfactory but not so meritorious as to warrant an honorable
discharge.  Paragraph 3-7c states that an under other than honorable
conditions (UOTHC) discharge is issued when there is one or more acts or
omissions that constitute a
significant departure from conduct expected of a Soldier.  Paragraph 3-7h
specifically addresses issuance of an UOTHC for discharges issued under the
provisions of chapter 10 of this regulation.

10.  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.  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.

11.  The Manual for Courts-Martial, Table of Maximum Punishments, sets
forth the maximum punishments for offenses chargeable under the UCMJ.  A
punitive discharge is authorized for offenses under Article 86, for periods
of AWOL in excess of 30 days.

DISCUSSION AND CONCLUSIONS:

1.  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.  There is no indication that the
request was made under coercion or duress.

2.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 13 March 1970; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 12 March 1973.  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

_MKP ___  _REB ___  __LMB__  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.





                                  _    Margaret K. Patterson_________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040008597                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050825                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19700313                                |
|DISCHARGE AUTHORITY     |AR635-200 . . . . .                     |
|DISCHARGE REASON        |SPN 246                                 |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.000                                 |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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