RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            22 SEPTEMBER 2005
      DOCKET NUMBER:   AR20040008698


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Mr. Bernard Ingold                |     |Member               |
|     |Mr. Michael Flynn                 |     |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 undesirable discharge be upgraded to
honorable.

2.  The applicant states that he is a retired police sergeant and desires
clemency in having his discharge upgraded to honorable based on his post-
service conduct.

3.  The applicant provides a copy of his report of separation (DD Form
214).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the Board exercise sound equitable
principles regarding the applicant’s request to upgrade his discharge and
take into consideration all of the factors associated with his service.

2.  Counsel states, in effect, that the applicant served two tours in
Vietnam and that it was eminently possible that he was suffering from Post-
Traumatic Stress Disorder (PTSD) because of his inability to adapt to
stateside duty and conform to the expectations of a just and civil society,
which are classic symptoms of PTSD.

3.  Counsel provides no additional documents in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 6 July 1973.  The application submitted in this case is dated
27 September 2004 and was received on 18 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 limitation 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.  He enlisted in Connecticut on 7 January 1969 for a period of 3 years.
He completed his basic combat training at Fort Dix, New Jersey, and his
advanced individual training at Fort Belvoir, Virginia, before being
transferred to Vietnam on 22 June 1969, for duty as a power generator
equipment repairman.  He was advanced to the pay grade of E-4 on 27
December 1969.

4.  He departed Vietnam on 21 June 1970 and was transferred back to Fort
Belvoir to attend training as a heavy vehicle driver.  He completed his
training and was transferred to an artillery company at Travis Air Force
Base, California, for duty as a heavy vehicle driver on 21 August 1970.  On
17 November 1970, he was honorably discharged for the purpose of immediate
reenlistment.

6.  He reenlisted on 18 November 1970, for a period of 6 years, a variable
reenlistment bonus and assignment to Vietnam.  He was transferred to
Vietnam on 13 May 1971 and was assigned to an engineer company as a heavy
vehicle driver.  He was promoted to the pay grade of E-5 on 8 January 1972.

7.  He departed Vietnam on 21 January 1972 and was transferred to Fort Sam
Houston, Texas.

8.  On 2 November 1972, nonjudicial punishment was imposed against him for
using provoking language towards a superior commissioned and
noncommissioned officer.  His punishment consisted of a forfeiture of pay
for 1 month (suspended for 90 days).

9.  On 1 December 1972, he went absent without leave (AWOL) and remained
absent in a deserter status until he was apprehended by civil authorities
in Sacramento California, and was confined on charges of assault with a
deadly weapon.  He was placed on hold until military authorities at Fort
McArthur, California, returned him to military control at Fort Ord,
California, on 22 May 1973, where charges were preferred against him for
the AWOL offense.

10.  After consulting with his defense counsel, the applicant submitted a
request for discharge for the good of the service, under the provisions of
Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In
his request he indicated that he was making the request of his own free
will, without coercion from anyone and that he was aware of the
implications attached to his request.  He acknowledged that he understood
that he could receive a discharge under other than honorable conditions and
that he might be deprived of all benefits as a result of such a discharge.
He also elected to submit a statement in his own behalf, whereas he
asserted that he hated the Army, that he did not care what kind of
discharge he got as long as he got one, that he would just go AWOL again
and that he would not cooperate if restored to duty.  He also stated that
he understood what an undesirable discharge was and that he would accept
one to get out.

11.  The appropriate authority (a major general) approved his request and
directed that he be furnished an Undesirable Discharge Certificate.

12.  Accordingly, he was discharged under other than honorable conditions
on 6 July 1973, under the provisions of Army Regulation 635-200, chapter
10, in lieu of trial by court-martial.  He had served 4 years and 9 days of
total active service and had 171 days of lost time due to AWOL.  His awards
included the Vietnam Service medal, the Good Conduct Medal and the Republic
of Vietnam Campaign Medal.

13.  There is no evidence in the available records to show that he ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that board's 15-year statute of limitations.

14.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge
for the good of the service in lieu of trial by court-martial.  A condition
of submitting such a request is that the individual concerned must indicate
that they are submitting the request of their own free will, without
coercion from anyone and that they have been briefed and understand the
consequences of such a request as well as the discharge they might receive.
 A discharge under other than honorable conditions was then and still is
normally considered appropriate.

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.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate under the circumstances.


3.  After being afforded the opportunity to assert his innocence before a
trial by court-martial, he voluntarily requested a discharge for the good
of the service in hopes of avoiding a punitive discharge and having a
felony conviction on his records.

4.  The applicant's contentions, undocumented assertions of post-conduct
accomplishments and his overall record of service have been considered.
However, they are not sufficiently mitigating to warrant relief when
compared to his extensive unauthorized absence and the explanation offered
at the time of discharge.  His service simply does not rise to the level of
even a general discharge.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 July 1973; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 5 July 1976.  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

____JA__  ___BI___  ___MF___  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.




            _____James Anderhom_________________
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040008698                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050922                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1973/07/06                              |
|DISCHARGE AUTHORITY     |AR635-200/CH10 . . . . .                |
|DISCHARGE REASON        |GD OF SVC                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |689/A70.00                              |
|1.144.7000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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