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:         BROYLES, JERRY W.
             443-44-2267

      BOARD DATE:             JULY 1, 2004
      DOCKET NUMBER:     AR2004100030


      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 joined the Regular Army so that he could
go to Vietnam to be with his brother and the Army would not send him so he
went absent without leave (AWOL) and was discharged under other than
honorable conditions. He goes on to state that he does not believe that he
deserved to be discharged under other than honorable conditions when he
wanted to fight for country.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 1 October 1971.  The application submitted in this case is
dated 30 September 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.  After serving in the Army National Guard from 10 May 1963 to 5 May
1969, the applicant enlisted in the Regular Army in Los Angeles,
California, on 5 November 1969, for a period of 3 years.  He was
transferred to Fort Ord, California, to undergo his training.

4.  It appears that he was recycled to three different courses of training
while at Fort Ord and on 6 May 1970, he went AWOL and remained absent until
he was returned to military control on 11 May 1970.  He went AWOL on 22 May
and remained absent until 20 September 1970, when he was returned to
military control at Fort Lewis, Washington.  On 5 October he again went
AWOL and remained absent in a deserter status until he was returned to
military control at Fort Carson, Colorado, on 2 September 1971 and charges
were preferred against him for the AWOL offenses.

5.  The facts and circumstances surrounding the applicant’s discharge are
not present in the available records.  However, his records do contain a
duly constituted report of separation (DD Form 214) signed by the
applicant, which shows that he was discharged under other than honorable
conditions at Fort Carson on 1 October 1971, under the provisions of Army
Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had
served 7 months and 26 days of active service during his current enlistment
and had 458 days of lost time due to AWOL.  He was still in a trainee
status at the time of his discharge.

6.  There is no evidence in the available records to show that he ever
applied to the ADRB for an upgrade of his discharge.

7.  A review of his records fails to show that the applicant ever indicated
that he had a brother.  His records do indicate that he has a sister.

8.  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.  In the absence of evidence to the contrary, it must be presumed that
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 during a short
period of time.

4.  The applicant's contentions have been noted and appear to be without
merit.  He did not complete his training before he began a series of going
AWOL and could not have received assignment orders to go anywhere until
such time as he had completed training in a designated specialty.

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 1 October 1971; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 30 September 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

lem_____  lds_____  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                 |AR2004100030                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040701                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1971/10/01                              |
|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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