RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            JUNE 10, 2004
      DOCKET NUMBER:   AR2003099899


      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. Luis Almodova                 |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Joe Schroeder                 |     |Member               |
|     |Mr. Robert Duecaster              |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 discharge be upgraded.

2.  The applicant states, in effect, that he would like to have his
discharge upgraded so that he can apply for partial VA (Department of
Veterans Affairs) benefits.  He is now 55 years old and totally disabled –
cancer, diabetes, etc.  He adds that he enlisted and messed up.  He wasn't
afraid to join nor did he run away to Canada or to England.  After he went
in, he went AWOL (absent without leave) three times because his wife left
him.  He was only 19 years old at the time.  He received two article 15s,
they kicked him out of the Army Security Agency, and he was given an
undesirable discharge at Fort Dix, New Jersey after he turned himself in.

3.  The applicant provides a VA Form 21-4138, Statement in Support of
Claim, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice that
occurred on 8 April 1976.  The application submitted in this case is dated
20 October 2003.

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.  The applicant enlisted in the Regular Army for 4 years on 4 December
1967, for training and assignment in the Army Security Agency.

4.  On 11 January 1968, the applicant received nonjudicial punishment under
the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ)
for absenting himself from his unit on 6 January and remaining absent until
8 January 1968.  The imposed punishment was restriction to the company
area for 14 days and to perform extra duties for 14 days, the punishment to
run concurrently.  The applicant did not appeal the punishment.

5.  Item 44 (Time Lost Under Section 972, Title 10, United States Code and
Subsequent to Normal Date ETS), DA Form 20, Enlisted Qualification Record,
shows other periods of AWOL as follows:  from 12 January 1968 through
17 January 1968; 27 January 1968 through 29 September 1968; 11 October 1968
through 6 August 1970; and from 19 August 1970 through 14 March 1976.

6.  DA Form 188, Extract Copy of Morning Report, prepared on 12 February
1968, shows the applicant was reported AWOL for the period ending 2400
hours, 12 January 1968, from Company A, 1st Battalion, 1st Training
Brigade, U.S. Army Training Center, Infantry, Fort Jackson, South Carolina.

7.  Other extracts of morning report entries shows that the applicant was
arrested and confined by law enforcement authorities in Cincinnati, Ohio,
at 1330 hours, 19 January 1968.  He was transferred to the custody of
military authorities at the Special Processing Detachment, Fort Knox,
Kentucky, on 26 January 1968.

8.  On 27 January 1968, the applicant departed AWOL.  He was dropped from
the rolls of the organization on 29 January 1968, and he remained AWOL
until 1300 hours, 1 October 1968, when he surrendered himself to military
authorities at Fort Knox, Kentucky.

9.  On 11 October 1968, while a prisoner assigned to the U.S. Army Armor
Center Stockade, Fort Knox, the applicant was assigned to a detail.  At
about 1005 hours, during a break, he escaped from the detail when he ran
out an open door.

10.  The applicant was returned to the Special Processing Detachment on
11 August 1970 after having been apprehended by civilian law enforcement
authorities in Milford, Ohio, on 7 August 1970.

11.  On 19 August 1970, the applicant again departed AWOL from the Special
Processing Detachment on 19 August 1970, and was subsequently dropped
from the rolls of the organization on 20 August 1970.  He remained AWOL
until 15 March 1976 when he surrendered himself to the Provost Marshal's
Office, Fort Dix, New Jersey.

12.  Court-martial charges were prepared for presentation to the applicant
on 9 October 1968, 16 October 1970, and an undetermined date [date was not
entered on the applicable form]; however, these forms were not acknowledged
by the applicant because of his absences.

13.  The separation packet which was prepared and which resulted in the
applicant's separation is not on file in the applicant's service personnel
record.  Those documents, which are available, appear to be working copies
of documents that went into the final packet.

14.  There is evidence that the applicant consulted with counsel and
submitted a request for discharge from the service, under the provisions of
Army Regulation (AR) 635-200, chapter 10, for the good of the service, in
lieu of trial by
court-martial.

15.  In his request for discharge, the applicant acknowledged that he
understood that he could be discharged because charges had been preferred
against him under the UCMJ, which authorized the imposition of a bad
conduct discharge or dishonorable discharge.

16.  The applicant acknowledged that he had made the request for discharge
of his own free will and had not been subjected to coercion whatsoever by
any person.

17.  The applicant acknowledged guilt of the charges against him, or lesser-
included offenses therein contained, which also authorized the imposition
of a bad conduct discharge or dishonorable discharge.

18.  The applicant stated in his request for discharge that under no
circumstances did he desire further rehabilitation nor did he have any
further desire to perform military service.

19.  In his request for discharge, the applicant stated that he understood
that if his discharge was accepted, he could be discharged under other than
honorable conditions and furnished an undesirable discharge certificate,
and as a result of issuance of such a discharge, he could be deprived of
many or all Army benefits, and that he may be ineligible for many or all
benefits administered by the Veterans' Administration [now the Department
of Veterans' Affairs], and that he might be deprived of his rights and
benefits as a veteran under both Federal and State law.  He also understood
that he could expect to encounter substantial prejudice in civilian life by
reason of an undesirable discharge.

20.  The applicant did not submit a statement in his own behalf.

21.  The recommendations made by the applicant's chain of command and
the approving authority are not available; however, the evidence shows that
on 8 April 1976, Special Orders 99, Paragraph 218, were published by
Headquarters U.S. Army Training Center, Fort Dix, New Jersey, authorizing
the applicant's discharge with an undesirable discharge, effective the same
date.

22.  The applicant was discharged in lieu of trial by court-martial, with
an undesirable discharge on 8 April 1976, in the rank and pay grade,
private, E-1.  On the date of his discharge, he had 3 months, and 1 day
active military service.
23.  The applicant had 2955 days lost under Title 10, U.S. Code 972; 1562
days lost subsequent to his normal ETS (expiration term of service); and 22
days excess leave.  The applicant's service was characterized as under
other than honorable conditions.

24.  Item 26 (Decorations, Medals, Badges, Commendations, Citations, and
Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214
shows that he was awarded the National Defense Service Medal.  The record
contains no documentary evidence of acts of valor, achievement, or service
warranting special recognition.

25.  There is no evidence that the applicant applied to the Army Discharge
Review Board during it 15-year statute of limitations for an upgrade of his
discharge.

26.  AR 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 submit, at any time
after the charges have been preferred, 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, but the
separation authority may direct a general discharge or an honorable
discharge if such is merited by the soldier's overall record and if the
soldier's record is so meritorious that any other characterization clearly
would be improper.

27.  AR 635-200, paragraph 3-7, provides that an honorable discharge is a
separation with honor and entitles the recipient to benefits provided by
law.  The honorable characterization is appropriate when the quality of the
member’s service generally has met the standards of acceptable conduct and
performance of duty for Army personnel, or is otherwise so meritorious that
any other characterization would be clearly inappropriate.  Whenever there
is doubt, it is to be resolved in favor of the individual.

28.  The above referred to regulation also defines a general discharge as a
separation from the Army under honorable conditions.  When authorized, it
is issued to a soldier whose military record is satisfactory but not
sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was charged with the
commission of an offense punishable with a punitive discharge under the
UCMJ.  After consulting with defense counsel, the applicant voluntarily,
and in writing, submitted a request for discharge, under the provisions of
AR 635-200, Chapter 10, for the good of the service, to avoid trial by
court-martial, the possibility of a punitive discharge, and having a felony
conviction on his record.  In doing so, the applicant admitted guilt to the
stipulated offense under the UCMJ.

2.  There is no indication that the request was made under coercion or
duress.

3.  The applicant’s voluntary request for separation, was administratively
correct and in conformance with applicable regulations.  All requirements
of law and regulation were met and the rights of the applicant were fully
protected throughout the separation process.

4.  The characterization of service for this type of discharge is normally
under other than honorable conditions and the applicant was aware of that
before requesting discharge.

5.  By having gone absent without leave and having been dropped from the
rolls of his organization, the quality of the applicant's service did not
meet the standards of acceptable conduct and performance expected of Army
personnel; therefore, the applicant is not entitled to an upgrade of his
discharge under conditions other than honorable, to a fully honorable
discharge or to a general discharge under honorable conditions.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 April 1976; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 7 April 1979.  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 RELIEF

________  ________  ________  GRANT FORMAL HEARING

mm_____  jrs  _____  rd______  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.




            ___Melvin H. Meyer___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004099899                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040610                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19760408                                |
|DISCHARGE AUTHORITY     |AR 635-200, chapter 10                  |
|DISCHARGE REASON        |In Lieu of Trial by Court-Martial       |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  360  |144.0000                                |
|2.  689                 |144.7000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |