RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           24 August 2004
      DOCKET NUMBER:  AR2004100523


      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, in effect, that his undesirable discharge (UD)
be upgraded to an honorable discharge and that the word "Deserter" be
removed from his records.

2.  The applicant states that he was not supposed to be in the Army.  He
states that, at the time he was drafted, he was the only boy in his family
and should not have been drafted.  He states that he could not afford a
lawyer to fight his induction, so he was drafted.  He states that he went
AWOL, was later picked up, and then discharged.  The applicant also states
that he is an avid hunter, that he loves the outdoors, and that he cannot
buy a gun for hunting.  He further states that he has been a good citizen,
is a father and grandfather, has always been gainfully employed, and has
never been in trouble since the Army.  He invites the Board to check his
records.

3.  The applicant provides a short statement in his own behalf in support
of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 21 June 1971.  The application submitted in this case is
dated 9 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.  The applicant's military personnel records show the applicant was
inducted into the Army of the United States on 10 June 1970 for a period of
2 years and was assigned to Fort Jackson, South Carolina for basic combat
training (BCT).

4.  The applicant reported to Fort Jackson on or about 22 June 1970 for BCT
and departed his unit in an absent without leave (AWOL) status on 10 August
1970.  The applicant was dropped from the rolls of his unit as a deserter
on 8 September 1970.

5.  The applicant was apprehended by civil authorities on 25 September 1970
and remained in their custody until he was released to military authorities
on 7 October 1970.  He was returned to Fort Benning, Georgia and was
confined by military authorities from 8 October 1970 to 20 October 1970.

6.  On 21 October 1970, the applicant again departed his unit in an AWOL
status and was again dropped from the rolls as a deserter.  He remained
absent until 19 May 1971, when he was apprehended.  On 20 May 1971, the
applicant was returned to the Personnel Control Facility at Fort Campbell,
Kentucky.  On 26 May 1971, the applicant was placed in pretrial confinement
in the post stockade.

7.  On 8 June 1971, court-martial charges were preferred against the
applicant for two specifications of being AWOL from 10 August 1970 to 26
September 1970 and 21 October 1970 to 20 May 1971.  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 benefits.  The applicant elected not to submit a
statement in his own behalf.

8.  On 15 June 1971, the appropriate authority approved the applicant’s
request for discharge under the provisions of chapter 10, AR 635-200.  He
directed that the applicant be furnished a UD and be reduced to the lowest
grade.

9.  Accordingly, on 21 June 1971, the applicant was discharged with a UD.
He was credited with 3 months and 2 days of active military service and 283
days of lost time.

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 was normally considered appropriate.

11.  Army Regulation (AR) 614-200 (Enlisted Assignments and Utilization
Management) provides the basic guidance for assigning enlisted Soldiers.
Paragraph 5-9 of that regulation provides the regulatory guidance for
assignment of sole surviving sons or daughters.  A sole surviving son or
daughter is the only remaining son or daughter in a family where the
father, mother, or one or more sons or daughters:

      (1) Was killed in action or died in the line of duty while serving in
the Armed Forces as a result of wounds, accident, or disease.

      (2) Is captured or missing-in-action.

      (3) Is permanently 100 percent physically disabled (including 100
percent mental disability) as decided by the Veterans Administration or one
of the military services and is hospitalized on a continuing basis and is
not gainfully employed because of disability.  Being an only child or the
only remaining son/daughter does not qualify a soldier for sole survivor
status.  Contrary to popular belief, "only sons," "the last son to carry
the family name," and "sole surviving sons" must register for the draft,
they can be drafted, and they can serve in combat.  However, they may be
entitled to a peacetime deferment if there is a military death in the
immediate family.

It is important to keep in mind that the provisions of AR 614-200 are
directly related to service-connected deaths.  The mere fact that a man is
the only child or only son does not qualify him for consideration – he must
be the survivor of one who died as a result of military service.

12.  When a soldier is absent more than 30 days his status is changed from
an AWOL status to a desertion status.

13.  There is no indication that the applicant applied to the Army
Discharge Review Board for an upgrade of his discharge.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's contention that
he did not qualify for the draft.  The evidence of record shows that "only
sons," "last sons to carry the family name," and "sole surviving sons" are
eligible for the draft, must register for it, can be drafted and can serve
in combat.

2.  There was no mistake made in drafting the applicant.  The applicant was
eligible for the draft and was appropriately drafted.  It was the
applicant's responsibility to fulfill his service obligation.  However, the
applicant chose to go AWOL and accumulated 283 days of lost time.
Additionally, once he was AWOL more than 30 days his status was properly
changed to reflect the AWOL in desertion status.  Accordingly, there is no
reason to remove deserter from the applicant's records.

3.  The applicant's post service conduct and achievements are acknowledged;
however, considering his overall service record, his post service conduct
is not sufficiently mitigating to warrant an upgrade of his discharge.

4.  After consulting with defense counsel, the applicant voluntarily, and
in writing, requested separation from the Army in lieu of trial by court-
martial.  In doing so, the applicant admitted guilt to the stipulated
offenses under the UCMJ.  The record indicates that all requirements of law
and regulation were met and the rights of the applicant were fully
protected throughout the separation process.  Additionally, there is no
evidence of impropriety or inequity.

5.  The applicant’s 283 days of AWOL adversely affected the quality of his
service, brought discredit on the Army, and was prejudicial to good order
and discipline.  This incident of misconduct clearly diminished the quality
of the applicant’s service below that meriting a general or fully honorable
discharge.

6.  The applicant's discharge was appropriate because the quality of his
service was not consistent with the Army's standards for acceptable
personal conduct and performance of duty by military personnel.  The
applicant provided no independent, corroborating evidence demonstrating
that either the command's action was erroneous or that his service
mitigated his misconduct or poor duty performance.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 21 June 1971; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 20 June 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 FULL RELIEF

________  ________  ________  GRANT PARTIAL 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                 |AR2004100523                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040824                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19710621                                |
|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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