RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 August 2005
      DOCKET NUMBER:  AR20040010347


      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             |
|     |M                                 |     |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 that he was not a deserter but was working
undercover with orders to infiltrate and subvert the anti-war movement.  He
indicates he worked in Canada to infiltrate KGB (Soviet Committee for State
Security) cells that lead to the arrest of three KGB agents.

3.  The applicant provides a statement from a fellow Soldier who served
with him indicating that the applicant appeared to move around a lot for no
apparent reason.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error that
occurred on 18 December 1970, the date of his discharge.  The application
submitted in this case is dated 1 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's records show he entered active duty on 4 December 1967,
completed training, and was awarded the military occupational specialty
(MOS) 16C (Hercules Missile Crewman).

4.  In June 1968 the applicant was a self-referral to the mental health
clinic requesting treatment for depression, lack of interest, withdrawal,
and poor interpersonal relationships.  He was diagnosed as suffering from a
chronic, severe, emotional instability reaction and an immature personality
disorder.

5.  The applicant was AWOL (absent without leave) on 5 August 1968 for
which he received nonjudicial punishment under the provisions of Article
15, Uniform Code of Military Justice.

6.  Following a 13 September 1968 psychiatric determination that the
applicant was suffering from a personality disorder, the applicant's
security clearance was revoked effective 25 September 1968.  As a result of
the loss of his clearance he was retrained as a 70A (Light Truck Driver).

7.  The applicant was AWOL for the period 19 May 1970 through 11 September
1970.  Upon return to military control, court-martial charges were
preferred for this period of 116 days of AWOL.

8.  On 23 November 1970, 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.  He acknowledged
that if the request was accepted that he could receive a discharge under
other than honorable conditions and be furnished an Undesirable Discharge
(UD) Certificate.  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 if he received a UD.

9.  On 10 December 1970, the separation authority approved the applicant's
request and directed that he be reduced to the lowest enlisted pay grade
and discharged under the provisions of Army Regulation 635-200, chapter 10
with a UD.

10.  On 18 December 1970 the applicant was separated under the provisions
of Army Regulation 635-200, chapter 10 with a UD.  He had served 2 years,
8 months, and 17 days creditable service with 117 days of lost time.

11.  On 26 January 1976 the applicant was afforded a clemency discharge
pursuant to Presidential Proclamation 4313.

12.  The Army Discharge Review Board (ADRB) reviewed that applicant's
records and granted him an upgrade to a general discharge (GD) on 1 August
1979.

13.  Presidential Proclamation 4313, issued on 16 September 1974, provided
for the issuance of a clemency discharge to certain former Soldiers who
voluntarily entered into and completed an alternate restitution program
specifically designed for former Soldiers who received a less than
honorable discharge for AWOL related incidents between August 1964 and
March 1973.  Upon successful completion of the alternate service, former
members would be granted a clemency discharge by the President of the
United States, thus restoring his or her affected civil rights.  The
clemency discharge did not affect the underlying discharge and did not
entitle the individual to any benefits administered by the Veterans
Administration.  Soldiers who were AWOL entered the program by returning to
military control and accepting a discharge in lieu of trial by court-
martial.

14.  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.
Although an honorable or general discharge was authorized, an under other
than honorable conditions discharge is normally considered appropriate.

15.  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.  His service is appropriately
characterized by his overall record.

2.  The applicant has provided no documentation that the 116 days of AWOL
was the result of his working in an undercover position.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 August 1979; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 30 July 1982.  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                 |AR20040010347                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050825                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19701218                                |
|DISCHARGE AUTHORITY     |AR635-200                               |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |deny                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |upgrade                                 |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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