RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        30 AUGUST 2005
      DOCKET NUMBER:  AR20040010195


      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             |
|     |Ms. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Paul Smith                    |     |Chairperson          |
|     |Ms. Yolanda Maldonado             |     |Member               |
|     |Mr. Leonard Hassell               |     |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 deserter status be removed from his
records, and that his discharge be upgraded.  He is also seeking
information concerning his saving bonds that were returned to the
Government.

2.  The applicant states that he was confined in a civilian jail and
military authorities were unaware of his situation which caused his being
classified as a deserter.  He also states that his mother was instructed to
return his saving bonds to the Government, which he had paid for and has
never been compensated for.

3.  The applicant provides his Selective Service System notice of
classification, his assignment history, and a copy of his conviction by a
special court-martial, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 29 August 1969.  The application submitted in this case is
dated 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 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 on 14
February 1968, for a period of 2 years.  He successfully completed basic
combat training at Fort Dix, New Jersey, and advanced individual training
at Fort Gordon, Georgia.

4.  On 11 September 1968, he was convicted by a special court-martial of
being absent without leave (AWOL) from 1 August 1968 to 20 August 1968.  He
was sentenced to 6 months confinement at hard labor (suspended) and 6
months of forfeiture of pay.



5.  On 29 September 1968, he accepted nonjudicial punishment under the
provisions of Article 15, Uniform Code of Military Justice for being absent
from his place of duty on 27 September 1968.  His punishment was
restriction, extra duty, reduction and a forfeiture of pay.

6.  On 26 February 1969, extract copies of a morning report shows the
applicant had been dropped from the rolls as a deserter.

7.  On 30 April 1969, a report form the Federal Bureau of Investigation
showed the applicant had been apprehended by civil authorities in St. Lucie
County, Florida on a charge of uttering a forged instrument, and had been
sentenced to
a jail term of 3 years and 6 months.

8.  On 29 May 1969, a DA Form 268 (Report of Suspension of Favorable
Personnel Actions) showed the applicant had been AWOL since 26 October 1968
and was confined by civil authorities in Lake Butler, Florida since 29
April 1969.

9.  On 4 August 1969, the applicant was notified by his commander that he
was initiating action to eliminate him from the service under the
provisions of Army Regulation 635-206, because of his civil confinement.

10.  On 7 August 1969, the applicant acknowledged that he had been advised
of the basis for his commander’s elimination action.  He waived
consideration of his case by a board of officers, waived representation by
counsel, and elected not to submit a statement in his own behalf.  He also
acknowledged that he understood that as a result of issuance of an under
conditions other than honorable discharge he would be ineligible for many
or all benefits as a veteran under both Federal and State laws, and may
expect to encounter substantial prejudice in civilian life.

11.  In August 1969, his unit commander recommended his elimination under
the provisions of Army Regulation 635-206, stating that the applicant had
been convicted of forgery in a criminal court in Florida on 17 March 1969,
and had been sentenced to 3 years and 6 months confinement to be served at
the Florida State Prison in Raiford, Florida.

12.  On 13 August 1969, his senior commander recommended approval of his
elimination under Army Regulation 635-206.


13.  On 22 August 1969, the appropriate separation authority approved the
applicant’s discharge and directed the issuance of an undesirable
discharge.

14.  On 29 August 1969, the applicant was discharged under the provisions
of Army Regulation 635-206.  His DD Form 214 (Armed Forces of the United
States Report of Transfer or Discharge) indicates he had 5 months and 18
days of creditable service and 393 days of lost time.

16.  Army Regulation 635-206, then in effect, provided, in pertinent part,
that an enlisted member who was convicted by a civilian court of an offense
for which the authorized punishment under the UCMJ included confinement of
1 year or more was to be considered for elimination.

16.  There is no information in the applicant’s available records
concerning his receiving saving bonds, or a request for their return.

DISCUSSION AND CONCLUSIONS:

1.  The discharge proceedings were conducted in accordance with law and
regulations applicable at the time.

2.  The applicant contends that he was classified as a deserter because the
military was unaware of his civil confinement is without merit.  He was
classified as a deserter as a result of his being AWOL, which was prior to
his confinement by civil authorities.  There is no justification for
removing deserter status from his records.

3.  There is no evidence in the available records nor did the applicant
provide documentation to substantiate his claim of having saving bonds that
were later requested by the Government and returned by his mother.

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

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 29 August 1969; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
28 August 1972.  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

___PS___  ___YM__  ___LH___  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.




                                  _______Paul Smith________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010195                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050830                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |134.03                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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