Department of the Army
                  BOARD FOR CORRECTION OF MILITARY RECORDS
                      1901 SOUTH BELL STREET 2ND FLOOR
                          ARLINGTON, VA  22202-4508




                            RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:             JULY 1, 2004
      DOCKET NUMBER:     AR2004099952


      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. Jessie B. Strickland          |     |Analyst              |


  The following members, a quorum, were present:

|     |Ms. Lana McGlynn                  |     |Chairperson          |
|     |Ms. Linda Simmons                 |     |Member               |
|     |Mr. John Meixell                  |     |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.

2.  The applicant states that he was told to sign the request for discharge
or he would go to the stockade, which was unfair and misleading because he
was not informed of the type of discharge he would receive nor the
consequences of what he was doing.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 20 March 1974.  The application submitted in this case is dated
21 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.  He enlisted at Fort Hamilton, New York on 9 April 1969 for a period of
3 years and was transferred to Fort Gordon, Georgia, to undergo his
training.

4.  While attending his advanced individual training (AIT) he went absent
without leave (AWOL) for 1 day on 7 July 1969.  The record is absent of any
punishment imposed for that offense.

5.  He was transferred to Germany on 10 October 1969 and was assigned to an
infantry company in Augsburg, Germany, for duty as a light weapons
infantryman.  He was advanced to the pay grade of E-4 on 29 June 1970.

6.  On 11 August 1970, nonjudicial punishment (NJP) was imposed against him
for being AWOL from 27 July to 7 August 1970.  His punishment consisted of
a forfeiture of pay, extra duty and restriction.

7.  The applicant departed Germany on 29 August 1970 en route to Vietnam.
His orders directed him to report to the Overseas Replacement Detachment at
Fort Lewis, Washington, on 22 October 1970.  The applicant failed to report
as ordered and was reported as being AWOL the same date.  He remained
absent until he was returned to military control at Fort Dix, New Jersey,
on 28 January 1971, where charges were preferred against him for the AWOL
offense.
8.  He was convicted by a special court-martial on 16 March 1971 of being
AWOL from 22 October 1970 until 28 January 1971.  He was sentenced to hard
labor for 3 months and a reduction to the pay grade of E-1.  However, the
convening authority approved only so much of the sentence as pertained to
the reduction to the pay grade of E-1.  The applicant was then transferred
to Fort Knox, Kentucky.

9.  On 17 May 1971, NJP was imposed against him for being AWOL from 7 May
to 16 May 1971.  His punishment consisted of a reduction in grade, a
forfeiture of pay, extra duty and restriction.

10.  On 26 July 1971, the applicant went AWOL and remained absent until he
was returned to military control at Fort Dix.  NJP was imposed against him
for being AWOL from 8 June until 19 July 1971.  His punishment consisted of
a forfeiture of pay.

11.  On 4 October 1971, NJP was imposed against him for being AWOL from
Fort Dix from 8 September to 29 September 1971.  His punishment consisted
of a reduction in grade (suspended for 60 days) and a forfeiture of pay.

12.  The applicant again went AWOL from 19 October to 28 October 1971, from
3 November to 12 November 1971, and from 20 December 1971 to 13 July 1972.
However, the available records are silent as to any punishment imposed.

13.  He again went AWOL on 5 June 1973 and remained absent until he was
apprehended by civil authorities on 15 January 1974 and was returned to
military control at Fort Dix, where charges were preferred against him.

14.  On 25 January 1974, after consulting with counsel, the applicant
submitted a request for discharge for the good of the service, under the
provisions of Army Regulation 635-200, chapter 10, in lieu of trial by
court-martial.  In his request he indicated that he was making the request
of his own free will, without coercion from anyone and that he was aware of
the implications attached to his request.  He also acknowledged that he
understood that he could receive a discharge under other than honorable
conditions and that he might be deprived of all benefits as a result of
such a discharge.  He further declined the option to submit a statement in
his own behalf.

15.  The appropriate authority approved his request and directed that he be
issued an Undesirable Discharge Certificate.

16.  Accordingly, he was discharged under other  than  honorable  conditions
on 20 March 1974, under the provisions of Army Regulation  635-200,  chapter
10, in lieu of trial by court-martial.  He had served  2  years,  11  months
and 24 days of total active service and had 717 days of  lost  time  due  to
AWOL.

17.  There is no evidence in the available records to show that he ever
applied to the ADRB for an upgrade of his discharge within that board's 15-
year statute of limitations.

18.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a voluntary request for
discharge for the good of the service in lieu of trial by court-martial.  A
condition of submitting such a request is that the individual concerned
must indicate that they have been briefed and understand the consequences
of such a request as well as the discharge they might receive. A discharge
under other than honorable conditions was at that time and is still
normally considered appropriate. There is no evidence in the available
records to show that he ever applied to the ADRB for an upgrade of his
discharge.

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.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a
trial by court-martial, he voluntarily requested a discharge for the good
of the service in hopes of avoiding a punitive discharge and having a
felony conviction on his records.  While he may now believe that he made
the wrong choice, he should not be allowed to change his mind at this late
date, especially considering the number and length of his absences.

4.  The applicant’s contentions and supporting documents have been
considered by the Board.  However, they are not sufficiently mitigating to
warrant relief when compared to his overall record of service.  The
applicant voluntarily requested discharge and indicated by his signature
that he understood the consequences of such a request.  His disciplinary
record as well as the lack of mitigating circumstances to explain his
misconduct clearly warranted the discharge he received.
5.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 March 1974; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 19 March 1977.  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

lem_____  ldm_____  jm______  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.




            ____Lana E. McGlynn__
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004099952                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040701                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1974/03/20                              |
|DISCHARGE AUTHORITY     |AR635-200/CH10 . . . . .                |
|DISCHARGE REASON        |GD OF SVC                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |689/A70.00                              |
|1.144.7000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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