RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:                              18 OCTOBER 2005
      DOCKET NUMBER:         AR20040009653


      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. John Slone                    |     |Chairperson          |
|     |Ms. Linda Simmons                 |     |Member               |
|     |Mr. Kenneth Lapin                 |     |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 a
general discharge.

2.  The applicant states that the punishment for his offense was too harsh,
that he was young and immature and that he was married while in the service
and was having trouble at home.  He goes on to state that the Army would
not let him go home so he went absent without leave (AWOL).  He continues
by stating that his family problems caused the situation and because he was
young, he did not react to the situation properly.

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

4.  COUNSEL’S REQUEST, STATEMENT AND EVIDENCE:  The applicant indicated on
the DD Form 149 that the American Legion would act as counsel. The American
Legion was notified that the applicant’s case and records were available
for review and failed to respond within the established timeframe.  As a
result, this case is being considered by the Army Board for Correction of
Military Records without input from the American Legion.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 16 May 1974.  The application submitted in this case is dated
28 October 2004 and was received on 6 November 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 was born on 17 April 1954 and enlisted in Norfolk, Virginia, with
parental consent on 30 April 1971, for a period of 3 years.  He was also
married with two dependents at the time of his enlistment.

4.  He completed his basic combat training at Fort Campbell, Kentucky, his
advanced individual training at Fort Leonard Wood, Missouri, and his
airborne training at Fort Benning, Georgia, before being assigned to Fort
Bragg, North Carolina, for duty as a food service specialist on 20 October
1971.

5.  On 3 July 1972, nonjudicial punishment (NJP) was imposed against him
for being AWOL from 22 June 1972 to 26 June 1972.  His punishment consisted
of a reduction to the pay grade of E-2 (suspended for 30 days), a
forfeiture of pay, extra duty and restriction.

6.  On 16 August 1972, NJP was imposed against him for failure to go to his
place of duty.  His punishment consisted of confinement to the correctional
custody facility for 7 days (suspended for 30 days).

7.  He was convicted by a special court-martial on 2 February 1973 of being
AWOL from 18 October 1972 to 2 January 1973.  He was sentenced to be
reduced to the pay grade of E-1 and to be confined at hard labor for 100
days.  He was transferred to the Army Retraining Brigade at Fort Riley,
Kansas, to serve his confinement.  On 19 April 1973, the unexecuted portion
of the sentence to confinement was suspended until 16 May 1973, unless
sooner vacated.

8.  He was transferred to Fort Eustis, Virginia, on 24 April 1973, and on 6
July 1973, he again went AWOL and remained absent until he was apprehended
by Federal Bureau of Investigation (FBI) officials on 1 November 1973 and
was returned to military control.

9.  He again went AWOL on 9 November 1973 and remained absent until he was
again apprehended by FBI officials in Norfolk on 5 April 1974 and was
returned to military control at Fort Eustis, where charges were preferred
against him for the two periods of AWOL.

10.  The facts and circumstances surrounding the applicant’s discharge are
not present in the available records.  However, his records do contain a
duly constituted report of separation (DD Form 214) signed by the
applicant, which shows that he was discharged under other than honorable
conditions at Fort Eustis, on 16 May 1974, under the provisions of Army
Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had
served 1 year, 10 months and 16 days of total active service and had 421
days of lost time due to AWOL and confinement.


11.  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.

12.  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 voluntary 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 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 at that time and is still
normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that
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.  The applicant’s contentions have been considered by the Board.
However, they are not sufficiently mitigating to warrant relief when
compared to his overall record of undistinguished service.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 May 1974; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
15 May 1977.  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

____JS__  ___LS __  __KL____  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 Slone______________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040009653                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |19740516                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1974/05/16                              |
|DISCHARGE AUTHORITY     |AR635-200/CH10 . . . . .                |
|DISCHARGE REASON        |GD OF SVC                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |689/A70.00                              |
|1.144.7000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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