RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            6 May 2004
      DOCKET NUMBER:   AR2004099942


      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             |
|     |Mrs. Victoria A. Donaldson        |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Thomas D. Howard, Jr.         |     |Chairperson          |
|     |Mr. James E. Anderholm            |     |Member               |
|     |Mr. Ronald J. Weaver              |     |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 that his undesirable discharge be upgraded to
honorable.

2.  The applicant states, in effect, that after his service in Vietnam he
became a changed person because there was so much death surrounding him
most of the time.  He contends that one night while on duty he spotted the
enemy and called for help on the radio; however, his commander told him to
knock off the “B.S.” and stay out there and observe.  The enemy hit with a
round and a firefight ensued that lasted all night.  That incident changed
his whole outlook on things when it came to blacks and Hispanics.  He
refused to take another chance with his life after his commander did not
believe him.  He contends that he was sent to a psychiatrist and it did not
seem to help.  After that he was put in jail and given a chance to go to
another company or go home, he chose to go home.

3.  The applicant provides a letter of explanation, dated 17 October 2003;
a DD Form 215 (Correction to DD Form 214); and a copy of his DD Form 214
(Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 1 November 1969.  The application submitted in this case is
dated 17 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 was inducted on 5 November 1968.  He successfully
completed basic training and advanced individual training in military
occupational specialty 11B (light weapons infantryman).

4.  The applicant went absent without leave (AWOL) on 1 May 1969 and
returned to military control on 5 May 1969.

5.  The applicant was transferred to Vietnam on 9 May 1969.  While in
Vietnam, the applicant went AWOL on 17 July 1969 and returned to military
control on
28 August 1969.  He departed AWOL again on 17 September 1969 and returned
to military control on 21 September 1969.
6.  On 25 September 1969, charges were preferred against the applicant for
being AWOL from 17 July 1969 to 29 August 1969 and from 17 September 1969
to 22 September 1969; being disrespectful in language toward his superior
noncommissioned officer; and disobeying a lawful command.  He was placed
into pretrial confinement on 6 October 1969.

7.  On 16 October 1969, after consulting with counsel, the applicant
submitted a request for discharge for the good of the service in lieu of
trial by court-martial under the provisions of Army Regulation 635-200,
chapter 10.  He indicated in his request that he understood that he could
be discharged under other than honorable conditions and furnished an
Undesirable Discharge Certificate, that he might be deprived of many or all
Army benefits, that he might be ineligible for many or all benefits
administered by the Veterans Administration and that he might be deprived
of his rights and benefits as a veteran under both Federal and State law.
He also acknowledged that he might encounter substantial prejudice in
civilian life because of an undesirable discharge.  The applicant elected
not to submit a statement in his own behalf.

8.  On 27 October 1969, the separation authority approved the applicant’s
request for discharge and directed that he be issued an Undesirable
Discharge Certificate.

9.  The applicant was transferred back to the United States on 30 October
1969.

10.  Accordingly, the applicant was discharged with an undesirable
discharge on
1 November 1969 under the provisions of Army Regulation 635-200, chapter
10, for the good of the service.  He had served 9 months and 13 days of
total active service and had 74 days of lost time due to AWOL and
confinement.

11.  The applicant’s DD Form 214 erroneously shows his separation authority
as Army Regulation 635-212.  A DD Form 215, prepared on 14 August 2002,
amended his DD Form 214 to show the separation authority as Army Regulation
635-200, chapter 10, and additional authorized awards.

12.  There is no indication in the available records that the applicant
applied to the Army Discharge Review Board for a discharge upgrade within
its 15-year statute of limitations.

13.  On 20 June 2002, the ABCMR denied the applicant’s request for a
discharge upgrade to general.

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.
At the time, an undesirable discharge was normally considered appropriate.

15.  Army Regulation 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 (emphasis
added), 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.

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.  He had an opportunity to submit a
statement in which he could have voiced his reasons for going AWOL and he
failed to do so.

2.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.

3.  The applicant’s record of service included AWOL charges wherein trial
by special court-martial was recommended and 74 days of lost time.  As a
result, his service was not satisfactory.  Therefore, the applicant's
record of service is insufficiently meritorious to warrant a general
discharge.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 November 1969; therefore, the time
for the applicant to file a request for correction of any injustice expired
on 31 October 1972.  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

_TDH___  _RJW___  _JEA____  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.



            _Thomas D. Howard, Jr._
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR200409942                             |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/05/06                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |