RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         27 SEPTEMBER 2005
      DOCKET NUMBER:  AR20040011082


      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. Ronald Blakely                |     |Chairperson          |
|     |Mr. Lawrence Foster               |     |Member               |
|     |Ms. LaVerne Douglas               |     |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, in effect, that his records be corrected by
upgrading his discharge.

2.  The applicant states that he volunteered to go to Vietnam, that he was
told that after he had spent a year there he would be allowed to get a
hardship discharge, which he thought was the same as an honorable.  He
wanted to get out of the Army because his family was falling a part; his
wife was 6 months pregnant and he was not the father; and he had a neck and
knee condition as he was airborne.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
7 October 1971.  The application submitted in this case is dated 22
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 initially enlisted and entered active duty on 7 November
1963.  He was honorably discharged on 4 November 1966, and reenlisted on 24
July 1967 for a period of 3 years.  He served in Germany from March 1964 to
March 1966, and in Vietnam from April 1968 to April 1969.

4.  On 28 August 1967, the applicant accepted nonjudicial punishment under
the provisions of Article 15, Uniform Code of Military Justice for failure
to go to his appointed place of duty on 23 August 1967, and for departing
from his place of duty on 24 August 1967 without authority.  His punishment
was reduction, extra duty and restriction.



5.  On 5 May 1970, the applicant was convicted by a special court-martial
of being absent without leave (AWOL) from 18 October 1969 to 14 April 1970.
 He was sentenced to confinement at hard labor for 4 months, and reduction
to Private E-1 (suspended for 6 months).

6.  On 26 August 1970, the applicant was convicted by a special court-
martial of being AWOL from 25 June 1970 to 3 August 1970.  He was sentenced
to confinement at hard labor for 2 months (suspended) and reduction to
Private E-1.

7.  The facts and circumstances surrounding the applicant’s discharge
proceedings are not in the available records, however, on 7 October 1971,
he was discharged under other than honorable conditions, under the
provisions of Army Regulation 635-200, Chapter 10.  His DD Form 214 (Armed
Forces of the United States Report of Transfer or Discharge) indicates he
had 2 years,
11 months, and 26 days of net service and 443 days of lost time in the
period under review.  He had a total of 5 years, 11 months, and 24 days of
total active service.

8.  Army Regulation 635-200, then in effect, set forth the basic authority
for the separation of enlisted personnel.  Chapter 10 of that regulation
provided, in pertinent part, that a member who had committed an offense or
offenses for which the authorized punishment included a punitive discharge
could at any time after the charges had been preferred; submit a request
for discharge for the good of the service in lieu of trial by court-
martial.  At the time of the applicant’s separation, the regulation
provided for the issuance of an under other than honorable conditions
discharge.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the
discharge proceedings were conducted in accordance with law and regulation
applicable at the time.

2.  The Board notes that the applicant has failed to submit evidence in
support of his allegations, that he was advised that he would be receiving
a hardship discharge which was the same as an honorable or that he was
promised such a discharge after serving 1 year in Vietnam.

3.  The applicant voluntarily requested separation under AR 635-200,
Chapter 10, for the good of the service, to avoid trial by court-martial.
The characterization of his discharge is commensurate with his overall
record of military service.
4.  In view of the foregoing, there is no basis for granting the
applicant's request.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 7 October 1971; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on            6 October 1974.  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

___RB __  ___LF___  ___LD  __  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.




                                  _____ Ronald Blakely________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011082                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050927                                |
|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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