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:     AR2004099973


      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:

|     |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, in effect, that his discharge be upgraded to at
least a General Discharge so that he can access VA (Department of Veterans'
Affairs) benefits.

2.  The applicant states, in effect, that he was discharged from the
service under chapter 10, other than honorable.  He had been promised that
if he would serve for 3 years, he would get to work on AH1G, Huey Attack
Helicopters.  That didn't happen.  They stuck him in a motor pool in Korea.
 He was young, disappointed and stuck.

3.  The applicant provides, in addition to his application to the Board, a
VA Form 21-4138, Statement in Support of Claim, dated 23 October 2003.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice that
occurred on 4 February 1972.  The application submitted in this case is
dated 23 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 3 years on 3 March 1969.
 The applicant completed basic combat training at Fort Lewis, Washington,
and his advanced individual training at Fort Eustis, Virginia.  Upon
completion of all required training, he was awarded the Military
Occupational Specialist (MOS) 67Y, AH-1G Helicopter Repairman.

4.  On 1 October 1969, the applicant was assigned to Company E, 707th
Maintenance Battalion, 7th Infantry Division, in Korea, for duty as a
helicopter repairman.

5.  On 27 January 1970, the applicant received nonjudicial punishment (NJP)
under the provisions of Article 15 of the Uniform Code of Military Justice
(UCMJ) for absenting himself from his place of duty, at about 1900 hours,
on 23 January 1970, and remaining absent until on or about 2345 hours, on
the same date.
The imposed punishment was a reduction to the rank and pay grade, Private,
E-2, (suspended for 30 days), and a forfeiture of $20.00 per month, for one
month.  The applicant did not appeal the punishment.

6.  On 10 February 1970, the commander vacated the reduction to Private, E-
2, that was imposed in the NJP that was administered on 27 January 1970.

7.  On 13 June 1970, the applicant was convicted by a Special Court-Martial
that was convened by Headquarters, Support Command, 7th Infantry Division,
for committing an assault upon another soldier, on 12 May 1970.  On 13 June
1970, the applicant was sentenced to confinement at hard labor for
6 months; to forfeit $75.00 per month, for 6 months; and to be reduced to
the rank and pay grade of Private E-1.  The sentence was approved and
ordered executed on 13 July 1970.

8.  On 6 August 1970, the unexecuted portion of the sentence to confinement
at hard labor was suspended until 12 November 1970.  The suspension of
the sentence was announced in Special Court-Martial Order Number 39,
Headquarters, Support Command, 7th Infantry Division, dated 6 August 1970.

9.  On 24 September 1970, the unexecuted portion of suspension of
confinement at hard labor for six months was vacated.  The vacation of the
suspension was announced in Special Court-Martial Order Number 56,
Headquarters, 20th General Support Group, United States Army ASCOM
District, dated 24 September 1970.

10.  On 15 December 1970, the unexecuted portion of the sentence to
confinement at hard labor for six months was remitted.  The remission of
the sentence was announced in Special Court-Martial Order Number 76,
Headquarters, 20th General Support Group, United States Army ASCOM
District, dated 15 December 1970.

11.  Item 38 (Record of Assignments), of the applicant's DA Form 20,
Enlisted Qualification Record, shows that he was assigned for duty as a
helicopter repairman from 1 October 1969 through 15 January 1970 (3 1/2
months), as a wheeled vehicle repairman from 16 January 1970 through
5 August 1970 (nearly 7 months); as an AH-1G Helicopter Repairman from
6 August 1970 through 17 December 1970 (just over 4 months); and as a stock
control accounting clerk from 17 December 1970 through 15 February 1971 (2
months).

12.  The applicant departed Korea on permanent change of station and was
assigned to Company B, 1st Aircraft Maintenance Battalion, Hunter Army Air
Field, Georgia.  The applicant arrived at his new assignment on 12 April
1971.
13.  The applicant departed AWOL from his unit on 4 June 1971.  His status
was changed from "AWOL" to "Dropped from the Rolls of the Organization"
effective 2400 hours, 4 July 1971.  The applicant remained absent from his
unit until 6 January 1972.

14.  The evidence shows that on 12 January 1972, court-martial charges were
brought against the applicant for the above absence.

15.  The evidence of record shows that on 14 January 1972, the applicant
consulted with counsel and submitted a request for discharge from the
service under chapter 10, AR 635-200, for the good of the service.  The
applicant submitted an extensive statement in his behalf.  In this
statement, the applicant said, in effect, among many other things, that he
was disappointed that he had been assigned to work in a motor pool in
Korea.  He felt that this was a downgrade from his MOS.  He had always done
his work to the best of his abilities but it just was not good enough for
the Army.  He stated that he was a good worker but could not stand to be
pushed and ordered around by people with less experience in fields that he
was better at.  He had always had good paying civilian jobs and had always
been complimented on his fine work.  He states that he just couldn't handle
it.  He had tried and tried but nothing could change him.  He apologized
that it had taken so long for him to realize that the Army was not his way
of life.

16.  In his request, the applicant acknowledged that he had not been
subjected to coercion with respect to his request for discharge and had
been advised of the implications attached to it.  He stated that he
understood that if discharged, under other than honorable conditions, and
furnished an undesirable discharge, that he understood he shall be deprived
of many or all Army benefits and that he may be deprived of rights and
benefits as a veteran, under both Federal and State law, and that he may
encounter substantial prejudice in civilian life by reason of an
undesirable discharge.

17.  The applicant's chain of command unanimously recommended approval of
his request and recommended that he be discharged with an undesirable
discharge.

18.  The separation authority, a major general, approved the applicant's
discharge on 2 February 1972 and directed that he be reduced to the lowest
enlisted rank and pay grade and that he be discharged with an undesirable
discharge.

19.  Item 44 (Time Lost Under Section 972, Title 10, United States Code and
subsequent to Normal Date ETS), of the applicant's DA Form 20, Enlisted
Qualification Record, reflects the following lost time:  14 May 1970 to 5
August 1970 / 84 days due to Confinement // 24 September 1970 to 16
December 1970 / 84 days due to Confinement // 23 September 1970 to 23
September 1970 1 day due to AWOL (absence without leave) // 24 May 1971 to
27 May 1971 / 4 days due to AWOL.

20.  The applicant was discharged in the rank and pay grade of Private, E-
1, on 4 February 1972, under the provisions of Army Regulation (AR) 635-
200, Chapter 10.  The Separation Program Number (SPN) 246 (Discharge for
the Good of the Service) was applied to the applicant's DD Form 214.  The
applicant's service was characterized as, "Under Other than Honorable
Conditions."

21.  On the date of his discharge, the applicant had completed 2 years,
2 months, and 28 days, active military service.

22.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and
Campaign Ribbons Awarded or Authorized), of the applicant's DD Form 214,
Armed Forces of the United States, Report of Transfer or Discharge, 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.

23.  There is no evidence that the applicant applied to the Army Discharge
Review Board during its 15-year statute of limitations for an upgrade of
his discharge; however, the applicant did apply for a review of his
discharge by the DoD Discharge Review Program (Special), on 5 May 1977.
The applicant's request for a change in the type and nature of his
discharge was denied, and he was so notified on 12 August 1977.

24.  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.

25.  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.

26.  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 applicant's qualification record shows that he was initially
assigned duties as a helicopter repairman.  The record also shows that he
performed duties as a wheeled vehicle repairman, assumedly, in the motor
pool.  It is apparent that command made decisions designed to meet the
needs of the unit; however, the applicant was returned to duties as an AH-
1G Helicopter Repairman, the MOS for which he was trained.  While many
variables are unknown, the applicant's utilization outside his primary MOS
should not have been viewed negatively and as a disappointment.
Essentially, command was aware of his mechanical skill and acknowledged
these by utilizing him where he was needed at the time.

2.  The evidence of record shows the applicant was charged with the
commission of an offense punishable with a punitive discharge under the
UCMJ.

3.  After consulting with defense counsel, the applicant voluntarily, and
in writing, requested separation from the Army under the provisions of Army
Regulation 635-200, Chapter 10, for the good of the service, to avoid trial
by court-martial.  In doing so, the applicant admitted guilt to the
stipulated offense under the UCMJ.  There is no indication that the request
was made under coercion or duress.

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

5.  While he may now believe that he made the wrong choice, the applicant
should not be allowed to change his mind at this late date.  Additionally,
it is noted that it was the applicant who requested a discharge for the
good of the service to avoid the possibility of a punitive discharge and of
having a felony conviction on his records.

6.  The evidence shows that the applicant was aware, before requesting
discharge, that the characterization of service for this type of discharge
is normally Under Other Than Honorable Conditions.

7.  The reason for discharge and the characterization of service appear to
be both proper and equitable.  Further, the evidence shows that the quality
of his 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 undesirable discharge to an under honorable
conditions (general) discharge, or to an honorable discharge.

8.  The applicant's desire to have his undesirable discharge upgraded to
enable him to make application to the VA to qualify for medical benefits is
understandable; however, relief is not granted solely for the purposes of
qualifying an applicant to access the wide range of benefits that the VA
offers to soldiers who served honorably and faithfully.

9.  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 this requirement.

10.  In view of the foregoing, there is no basis for granting the
applicant's request for an upgrade of his undesirable discharge.

11.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 August 1977; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 11 August 1980.  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                 |AR2004099973                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040701                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19720204                                |
|DISCHARGE AUTHORITY     |AR 635-200, chapter 10                  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  360  |144.0000                                |
|2.  689                 |144.7000                                |
|3.  708                 |144.7100                                |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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