RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           20 May 2004
      DOCKET NUMBER:   AR2004100415


      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             |
|     |Ms. Wanda L. Waller               |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Fred Eichorn                  |     |Member               |
|     |Mr. Robert Osborn                 |     |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
general.

2.  The applicant states that the Army failed to promote him in the three
years he was in the service.

3.  The applicant provides no evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 16 May 1973.  The application submitted in this case is dated 6
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 U.S. Army Reserve on 5 October 1970 for a
period of 6 years under the delayed entry program.  He enlisted in the
Regular Army on 12 November 1970 for a period of 3 years.  While in basic
combat training, on 22 January 1971, nonjudicial punishment was imposed
against the applicant for being absent without leave (AWOL) from 10 January
1971 to
21 January 1971.  His punishment consisted of correctional custody for 25
days.

4.  On 6 April 1971, nonjudicial punishment was imposed against the
applicant for being AWOL from 3 February 1971 to 13 March 1971.  His
punishment consisted of a forfeiture of pay and restriction (suspended).

5.  The applicant was promoted to E-2 effective 1 June 1971.

6.  On 31 August 1971, in accordance with his plea, the applicant was
convicted by a special court-martial of being AWOL from 2 July 1971 to 16
August 1971 and from 17 August 1971 to 18 August 1971.  He was sentenced to
be confined at hard labor for 100 days, to forfeit $85 per month for 4
months and to be reduced to E-1.  On 10 September 1971, the convening
authority approved the sentence.  On 27 September 1971, the unexecuted
portion of the sentence to a forfeiture of pay was suspended until 10
November 1971.  On 29 October 1971, the unexecuted portion of the sentence
to confinement was remitted.


7.  The applicant was promoted to E-2 effective 10 November 1971.

8.  On 13 November 1972, nonjudicial punishment was imposed against the
applicant for being AWOL from 4 November 1972 to 5 November 1972 and from
12 November 1972 to 13 November 1972.  His punishment consisted of a
reduction to E-1 and a forfeiture of pay.

9.  On 6 December 1972, nonjudicial punishment was imposed against the
applicant for dereliction of duty.  His punishment consisted of a
forfeiture of pay and extra duty.

10.  On 18 December 1972, nonjudicial punishment was imposed against the
applicant for being AWOL from 17 December 1972 to 18 December 1972.  His
punishment consisted of a forfeiture of pay and restriction.

11.  The applicant was promoted to E-2 effective 1 January 1973.

12.  On 24 January 1973, charges were preferred against the applicant for
three AWOL specifications (26 December 1972 to 28 December 1972, 29
December 1972 to 10 January 1973, and 17 January 1973 to 23 January 1973),
failing to obey a lawful order, and breaking restriction.  Trial by special
court-martial was recommended.  On 15 February 1973, an additional charge
was preferred against the applicant for being AWOL from 6 February 1973 to
14 February 1973.

13.  On 8 March 1973, 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.  He indicated in his
request that he understood that he could be discharged under other than
honorable conditions and furnished an Undesirable Discharge Certificate,
that he might be deprived of many or all Army benefits, that he might be
ineligible for many or all benefits administered by the Veterans
Administration and that he might be deprived of his rights and benefits as
a veteran under both Federal and State law.  He also acknowledged that he
might encounter substantial prejudice in civilian life because of an
undesirable discharge.  The applicant elected not to submit a statement in
his own behalf.

14.  On 14 March 1973, a bar to reenlistment was imposed against the
applicant.

15.  The intermediate commanders recommended that the applicant's request
for discharge be disapproved and that he be tried by special court-martial.




16.  On 19 March 1973, the applicant was convicted by a special court-
martial of four specifications of AWOL (26 December 1972 to 28 December
1972,
29 December 1972 to 10 January 1973, 17 January 1973 to 23 January 1973,
and 6 February 1973 to 14 February 1973) and disobeying a lawful order.  He
was sentenced to be confined at hard labor for 5 months (confinement in
excess of 30 days was suspended for a period of 90 days) and reduction to E-
1.

17.  On 24 March 1973, the separation authority approved the applicant’s
request for discharge and directed that he be issued an undesirable
discharge.

18.  Accordingly, the applicant was discharged with an undesirable
discharge on
16 May 1973 under the provisions of Army Regulation 635-200, chapter 10,
for the good of the service.  He had served 1 year, 10 months and 5 days of
total active service and had 239 days of lost time due to AWOL and
confinement.

19.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge within its 15-year statute of
limitations.

20.  Army Regulation 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 at
any time after the charges have been preferred, submit a request for
discharge for the good of the service in lieu of trial by court-martial.
The regulation, in effect at the time, states that the request for
discharge may be submitted at any stage in the processing of the charges
until final action on the case by the court-marital convening authority.
At the time, an undesirable discharge was normally considered appropriate.

21.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is 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 the soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's contention that
the Army failed to promote him in the three years he was in the service.
Evidence of record shows the applicant was promoted to E-2 on three
separate occasions during his 22 months on active duty.



2.  The applicant’s record of service included a bar to reenlistment, five
nonjudicial punishments, two special court-martial convictions and 239 days
of lost time.  As a result, his record of service was not satisfactory.
Therefore, the applicant's record of service is insufficiently meritorious
to warrant a general discharge.

3.  The applicant’s voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, for the good of the service, was
administratively correct and in conformance with applicable regulations.
He also had an opportunity to submit a statement in which he could have
voiced his concerns and he failed to do so.

4.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.

5.  Records show the applicant should have discovered the alleged injustice
now under consideration on 16 May 1973; therefore, the time for the
applicant to file a request for correction of any injustice expired on 15
May 1976.  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

JNS_____  FE______  RO______  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                 |AR2004100415                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040520                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19730516                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 10                   |
|DISCHARGE REASON        |For the good of the service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |