RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           JUNE 22, 2004
      DOCKET NUMBER:   AR2004100001


      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:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Jose Martinez                 |     |Member               |
|     |Mr. Lawrence Foster               |     |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 a
general discharge.

2.  The applicant states that the actions of a 19 year old were not very
honorable; however, they were just that, the actions of a 19 year old.  He
further states that for the past 32 years he has been ashamed of his
actions and has had to live with them and he now asks that the Board
consider granting him an upgrade.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 3 February 1971.  The application submitted in this case is
dated 12 August 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 with parental consent in Los Angeles, California, on 19
January 1967, for a period of 3 years and training as an engineer equipment
operator.  He completed his basic combat training at Fort Ord, California,
and was transferred to Fort Leonard Wood, Missouri, for his advanced
individual training (AIT).

4.  He completed his AIT and was transferred to Germany on 12 June 1967 and
on 20 September 1967, he was honorably discharged for the purpose of
immediate reenlistment.  He reenlisted on 21 September 1967 for a period of
3 years.

5.  On 10 January 1968, nonjudicial punishment (NJP) was imposed against
him for violation of a lawful general regulation (consuming alcohol in the
billets).  His punishment consisted of a reduction to the pay grade of E-1
(suspended for 30 days), extra duty and restriction.

6.  On 1 May 1968, NJP was imposed against him for being absent from his
place of duty.  His punishment consisted of a reduction to the pay grade of
E-2 (suspended for 30 days), extra duty and restriction.

7.  On 7 June 1968, he departed Germany for assignment to Vietnam, with a
reporting date to the Overseas Replacement Detachment at Fort Lewis,
Washington, on 24 July 1968.  He failed to report as ordered and was
reported as absent without leave.  He remained absent until he was returned
to military control on 22 August 1968.

8.  On 30 August 1968, NJP was imposed against him for the AWOL offense.
His punishment consisted of a reduction to the pay grade of E-1 and a
forfeiture of pay.

9.  He was transferred to Vietnam on 7 September 1968 and was advanced to
the pay grade of E-4 on 15 December 1968.

10.  On 12 August 1969, he went AWOL and remained absent until he was
returned to military control at Fort Ord, California, on 2 December 1969,
where charges were preferred against him for the AWOL offense.

11.  He was convicted by a special court-martial on 16 December 1969 of
being AWOL from 12 August to 2 December 1969.  He was sentenced to
confinement at hard labor for 3 months, reduction to the pay grade of E-1
and a forfeiture of pay.  The convening authority approved the findings and
sentence; however he suspended that portion of confinement to hard labor in
excess of 1 month for a period of 3 months, unless sooner vacated.

12.  He again departed AWOL on 3 May 1970 and remained absent until he was
returned to military control at Fort Ord on 2 November 1970.  Charges were
preferred against him for the AWOL offense on 6 November 1970.

13.  On 18 November 1970, 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 elected to submit a statement in
his own behalf whereas he asserted that he had received seven NJPs in
Germany before being sent to Vietnam.  He went AWOL for 30 days and
received a field grade NJP for that AWOL period.  He came back from Vietnam
and went AWOL for 4 months before he was apprehended and served 30 days at
hard labor as a result of a court-martial.  He then departed AWOL for 7
months and had found a good job.  He went on to state that he could not
adapt to stateside duty, that he was much happier in civilian life and that
he refused to go back to duty.  He requested that he be discharged under
chapter 10 so that he could make something of himself.

14.  The appropriate authority (a major general) approved his request on
21 January 1971 and directed that he be issued an Undesirable Discharge
Certificate.

15.  Accordingly, he was discharged under other than honorable conditions
on 3 February 1971, 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 386 days of lost time
due to AWOL and confinement.

16.  There is no indication in the available records to show that he
applied to the Army Discharge Review Board for an upgrade of his discharge
within that board's 15-year statute of limitations.

17.  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.

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 length of his absences.

4.  The applicant’s contentions have been considered by the Board.
However, they are not sufficiently mitigating to warrant relief when
compared to his overall record of service.  While the applicant did serve
in Vietnam, 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 3 February 1971; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 2 February 1974.  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

jm______  lf___   ___  js______  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.



            ____John Slone____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004100001                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040622                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1971/02/03                              |
|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.                      |                                        |