RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           24 August 2004
      DOCKET NUMBER:  AR2004100515


      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             |
|     |Mrs. Carolyn Wade                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Melvin H. Meyer               |     |Member               |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |

      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 (UD) be upgraded.

2.  The applicant provides no statement.

3.  The applicant provides the following documents in support of his
application:

      a.  A letter of character reference from the Sheriff and the Circuit
Court Clerk of Breathitt County, Jackson, Kentucky.

      b.  A statement in his own behalf regarding the details of the
circumstances that resulted in his being absent without leave (AWOL).

      c.  A statement on his behalf from his wife requesting an upgrade in
her husband's discharge.

      d.  A copy of a Certificate of Honor from Horizon Natural Resources
honoring the applicant for completing a project without incurring a "lost
time accident."

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 3 July 1974.  The application submitted in this case is
dated 16 October [2003] and was received in this office on 6 November 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 military personnel records show he was inducted into
the Army of the United States on 6 June 1968 for a period of 2 years.
Following completion of all required military training, the applicant was
awarded military occupational specialty (MOS) 11B, Light Weapons
Infantryman and was assigned to Vietnam as his first permanent duty
assignment.

4.  The applicant served in Vietnam from 14 November 1968 to 14 November
1969.  Upon completion of his tour of duty in Vietnam, he was assigned to
Fort Hood, Texas.  The applicant departed his unit at Fort Hood absent
without leave (AWOL) on 24 December 1969 and remained AWOL until 1 May
1974.

5.  On 23 May 1974, court-martial charges were preferred against the
applicant for being AWOL from 24 December 1969 to 2 May 1974.

6.  On 5 June 1974, after consulting with legal counsel, the applicant
voluntarily requested discharge under the provisions of chapter 10, Army
Regulation 635-200 for the good of the service in lieu of trial by court-
martial.  The applicant was advised of the effects of a UD and that he
might be deprived of many or all Army and Veterans Administration (VA)
benefits.  The applicant submitted a statement in his own behalf indicating
that family problems were the reason he went AWOL. He states that he was
sent home on emergency leave when his wife became ill and that while at
home he became sick with Malaria.

7.  The applicant’s chain of command recommended approval of the request
for discharge under the provisions of chapter 10, AR 635-200 with the
issuance of a UD.

8.  On 19 June 1974, the appropriate authority approved the applicant’s
request for discharge under the provisions of chapter 10, AR 635-200 with a
UD. Accordingly, on 3 July 1974, the applicant was discharged from the Army
with a UD.  He was credited with 1 year, 9 months, and 27 days of active
military service and 439 days of lost time prior to his expiration of term
of service (ETS) and 126 days subsequent to his ETS.

9.  There is no evidence the applicant applied to the Army Discharge Review
Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year
statue of limitations.

10.  Army Regulation 635-200, then in effect, 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.  A UD is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was AWOL for 164 days prior
to his ETS and 1426 days subsequent to ETS.

2.  The evidence of record shows the applicant was charged with the
commission of an offense punishable under the Uniform Code of Military
Justice (UCMJ) with a punitive discharge and that he chose to request
discharge in lieu of trial by court-martial.

3.  The evidence of record shows the applicant submitted a statement in
support of his request for a chapter 10 discharge in which he indicated
that he had gone AWOL due to medical and family problems.  Although the
applicant felt that his only recourse to solve the medical and family
problems confronting him was to go AWOL, there were many other avenues
available to the applicant without committing the misconduct that resulted
in his being discharged in lieu of trial by court-martial.

4.  The applicant’s discharge proceedings were conducted in accordance with
law and regulations applicable at the time.  The character of the discharge
is commensurate with the applicant's overall record of military service.

5.  The applicant's 164 days of lost time prior to ETS and 1426 days
subsequent to ETS clearly diminished the quality of his service below that
meriting a general or fully honorable discharge.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 3 July 1974; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 2 July 1977.  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

__mkp___  __mhm___  __phm___  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.



                                  Margaret K. Patterson
            ______________________
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004100515                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040824                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19740703                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chap 10                     |
|DISCHARGE REASON        |A70.00                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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