RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 September 2005
      DOCKET NUMBER:  AR20040009518


      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. Robert J. McGowan             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Larry J. Olson                |     |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 (UD) be upgraded.

2.  The applicant states he had "back problems" in the service, but no one
believed him.  Now he receives disability compensation from the Social
Security Administration.

3.  The applicant provides no supporting documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 3 April 1970.  The application submitted in this case is
dated 26 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 was inducted into the Army of the United States for 2
years on 16 February 1968.  He was transferred to Fort Campbell, Kentucky
for Basic Combat Training (BCT).  He was absent without leave (AWOL) from
7 April 1968 through 26 September 1968.  He was returned to military
control and tried by a Special Court-Martial at Fort Campbell on 9 October
1968.  He was convicted and sentenced to confinement at hard labor for 6
months and forfeiture of $41 pay per month for 6 months.

4.  The applicant was transferred to the Correctional Training Facility,
Fort Riley, Kansas for service of his sentence to confinement.  The
applicant was in confinement (pre and post-trial) from 4 October 1968
through 14 December 1968.  Upon completion of his sentence to confinement,
he was transferred to Fort Leonard Wood, Missouri for Advanced Individual
Training (AIT) in military occupational training (MOS) 12A (Pioneer
Engineer).

5.  Upon completion of AIT, the applicant was assigned to Vietnam.  He
never reported to the Overseas Replacement Station and was listed as AWOL
from 22 April 1969 through 16 August 1969 until he was apprehended by
civilian police on 17 August 1969.  He was returned to military control at
Fort Campbell and was placed in military confinement from 28 August 1969 to
1 October 1969.  Released from military confinement, he went AWOL from 14
October 1969 to 29 January 1970 until again apprehended by civilian police
on 30 January 1970.

6.  The applicant was confined by civil authorities from 30 January 1970 to
6 February 1970 when he was returned to military control at Fort Campbell.
Court-martial charges were preferred against him for AWOL.  After
consulting with legal counsel, he requested discharge for the good of the
service in lieu of trial by court-martial.  His request was approved and he
was separated on 3 April 1970.

7.  The applicant's DD Form 214 (Armed Forces of the United States Report
of Transfer or Discharge) shows that he completed 8 months and 21 days of
creditable active Federal service and had 513 days of lost time due to AWOL
and confinement.  He received a UD under the provisions of paragraph 10-5,
Army Regulation (AR) 635-200 for the good of the service in lieu of trial
by court-martial.

8.  There is no indication in the applicant's records that he suffered from
back problems or that such back problems caused him to go AWOL.

9.  There is no indication the applicant petitioned the Army Discharge
Review Board (ADRB) seeking a discharge upgrade with that board's 15-year
statute of limitations.

10.  AR 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 a UD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant did not have back problems.  He was inducted into the US
Army and made it very plain that he did not want to be a Soldier.  His
record is replete with periods of AWOL almost from the date of his
induction.  He was separated because of his frequent AWOLs and his desire
to avoid trial by court-martial.

2.  The applicant's voluntary request for separation under the provisions
of AR 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.  His request for a chapter 10 discharge, even
after appropriate and proper consultation with a military lawyer, tends to
show he wished to avoid the court-martial and the punitive discharge that
he might have received.

3.  The applicant’s record of service during the period of enlistment under
review was thoroughly examined.  There was a full consideration of all
faithful and honorable service as well as the infractions of discipline,
the extent thereof, and the seriousness of the offenses.  The evidence of
record shows he was charged with the commission of an offense (AWOL)
punishable under the Uniform Code of Military Justice (UCMJ) with a
punitive discharge.  After consulting with defense counsel, he voluntarily,
and in writing, requested separation from the Army in lieu of trial by
court-martial.  In doing so, he admitted guilt to the stipulated or lesser
included offenses under the UCMJ.  All requirements of law and regulation
were met and the rights of the applicant were fully protected throughout
the separation process.  The characterization of service for this type of
discharge is normally under other than honorable conditions (undesirable)
and the applicant was aware of that prior to requesting discharge.  The
reason for discharge and the characterization of service were both proper
and equitable.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 3 April 1970; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 2 April 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

__wdp___  __jtm___  __ljo___  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.



                                  William D. Powers
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040009518                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050908                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19700403                                |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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