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:              JUNE 29, 2004
      DOCKET NUMBER:      AR2004100258


      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. Samuel Crumpler               |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Ms. Linda Barker                  |     |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 discharge under other than honorable
conditions be upgraded to honorable.

2.  The applicant states that his records were lost and that he was sent
home on emergency leave to await further orders; however, he never got any.


CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 16 June 1986.  The application submitted in this case was
received on 31 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's records, though somewhat incomplete, show that he was
inducted in Buffalo, New York, on 20 July 1967.  He completed his basic
combat training at Fort Dix, New Jersey, and was transferred to Fort Lee,
Virginia, to undergo his advanced individual training (AIT) as a stock
control and accounting specialist.

4.  On 1 November 1967, nonjudicial punishment (NJP) was imposed against
him for being absent from his place of duty from 31 October to 1 November
1967. His punishment consisted of a forfeiture of pay, extra duty and
restriction.

5.  On 11 January 1968, NJP was imposed against him for failure to go to
his place of duty (post guard duty).  His punishment consisted of a
forfeiture of pay, extra duty and restriction.

6.  On 16 February 1967, NJP was imposed against him for the wrongful
possession of marijuana.  His punishment consisted of a reduction to the
pay grade of E-1, a forfeiture of pay and extra duty.

7.  The applicant completed his AIT and received orders transferring him to
the overseas replacement detachment at Fort Dix for further assignment to
Vietnam. His report date to Fort Dix was 28 April 1968 after taking leave
en route; however, he failed to report as ordered and was reported as being
absent without leave.  He was subsequently dropped from the rolls of the
Army as a deserter.

8.  On 15 May 1985, the commander of the Fort Dix personnel control
facility was notified by civil authorities that the applicant was confined
in a correctional facility in New York (since 16 April 1985) and that his
earliest release date was in January 1986.  On 3 January 1986, he was
returned to military control at Fort Dix.

9.  The facts and circumstances surrounding his administrative discharge
are not present in the available records.  However, his records do contain
a duly constituted report of separation (DD Form 214) which shows that he
was discharged under other than honorable conditions on 16 June 1986, under
the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by
           court-martial.  He had served 1 year, 2 months and 23 days of
total active service and had 6,447 days of lost time due to AWOL and civil
confinement.

10.  On 25 June 1996, he applied to the Army Discharge Review Board (ADRB)
for an upgrade of his discharge.  On 13 March 1997, the ADRB voted
unanimously to deny his request.

11.  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 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 admit
guilt to the charges against them or of a lesser included offense which
authorizes the imposition of a bad conduct or dishonorable discharge and
they 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 is normally considered
appropriate.

12.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the 3 year limit on filing to the
Army Board for Correction of Military Records (ABCMR) should commence on
the date of final action by the ADRB.  In complying with this decision, the
ABCMR has adopted the broader policy of calculating the 3-year time limit
from the date of exhaustion in any case where a lower level administrative
remedy is utilized.

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.  The applicant's contention that he was sent home to await orders is
without merit.  The evidence of record clearly shows that he had orders
transferring him to Vietnam upon completion of his AIT and that he never
reported.

4.  The applicant has offered no evidence or argument in support of his
request and the evidence suggests that his undistinguished record of
service coupled with his extensive absence are properly characterized by
his discharge.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 13 March 1997; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 12 March 2000.  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

sac_____  le  ______  lb  ______  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.




            ___Samuel Crumpler___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100258                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040629                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |1986/06/16                              |
|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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