RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 SEPTEMBER 2005
      DOCKET NUMBER:  AR20040010783


      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. Kenneth H. Aucock             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Hise                    |     |Chairperson          |
|     |Mr. Thomas O’Shaughnessy          |     |Member               |
|     |Mr. Patrick McGann                |     |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.

2.  The applicant states he did not understand what he was doing at the
time and was only 19 years old.  He states he did not finish high school
and his brother forced him to join the service.  He states he was not
mature enough to make his own decision.  He states the discharge should be
upgraded because of amnesty granted by the President at the time.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 20 February 1975.  The application submitted in this case
is dated
29 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.  Records available to the Board indicate the applicant enlisted and
entered active duty on 7 October 1974.  He was 19 years old at the time
with 11 years of formal education.  His record indicates he was unemployed
at the time and had been since August 1974.  At the time of his enlistment
he was residing with his mother in California.  His records do indicate he
had two older brothers, however, his records indicate they were not
residing at the same address as the applicant at the time of his
enlistment.

4.  The applicant arrived at Fort Ord, California for the purpose of
undergoing basic combat training on 11 October 1974.  He was permitted to
go on leave and was reported as being AWOL (absent without leave) on 8
November 1974 when he failed to return to his unit following his leave.  He
was dropped from the rolls of the Army on 7 December 1974.

5.  On 12 December 1974 he was apprehended by civilian authorities in Crown
Point, Indiana and returned to military control at Fort Ord on 18 December
1974.

6.  On 10 January 1975, after charges were preferred, the applicant
consulted with counsel and voluntarily requested discharge for the good of
the service in lieu of trial by court-martial.  His request acknowledged he
understood the nature and consequences of the undesirable discharge which
he might receive.  He indicated he understood he could be denied some or
all veterans' benefits as a result of his discharge and that he may be
deprived of rights and benefits as a veteran under both Federal and State
law.  In a statement submitted on his own behalf he noted that he would not
adjust to the military and did not want to spend any time in the stockade.
He states that he did not think his mind was strong enough and stated that
he would get depressed.

7.  The appropriate separation authority approved the request and directed
that an undesirable discharge be issued.  On 20 February 1975 the applicant
was separated under the provisions of Army Regulation 635-200, Chapter 10.
He had 3 months and 4 days of creditable service and 40 days of lost time.

8.  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.  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 an undesirable discharge.

9.  The clemency issue noted by the applicant may be a reference to
Presidential Proclamation 4313, issued on 16 September 1974, which 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.


10.  There is no indication the applicant applied to the Army Discharge
Review Board to have his discharge upgraded.

DISCUSSION AND CONCLUSIONS:

1.  Contrary to the applicant’s contention, there is no evidence, and he
has not provided any, that he was coerced into joining the Army by his
brother.  The evidence available to the Board indicates the applicant was
unemployed and residing with his mother at the time of his enlistment.

2.  The applicant has submitted neither probative evidence nor a convincing
argument in support of his request.  His contention that his age and
education level somehow justified or excused his behavior is not
sufficiently mitigating to warrant the relief requested.

3.  In the absence of evidence to the contrary, the Board concludes that
the applicant's administrative separation was accomplished in accordance
with applicable laws and regulations.

4.  The applicant's belief that his discharge should have been upgraded
because of amnesty granted by the President at the time is also without
foundation.  The program the applicant may be referring to applied only to
individuals who received a less than honorable discharge for AWOL related
incidents between August 1964 and March 1973 and then successfully
completed some form of alternate service.

5.  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 request requirement.

6.  The actions by the Army in this case were proper, and there is no doubt
to be resolved in favor of the applicant.

7.  In view of the foregoing, there is no basis for granting the
applicant's request.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 February 1975; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 19 February 1978.  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

___JH___  ___TO __  ___PM __  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 Hise_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010783                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050920                                |
|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.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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