RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           22 June 2004
      DOCKET NUMBER:   AR2004100615


      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. Beverly A. Young              |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Jose Martinez                 |     |Member               |
|     |Mr. Lawrence Foster               |     |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 a
general discharge.

2.  The applicant states that he had over 3 years of honorable service.  He
states that after spending almost 3 years in Vietnam, he had problems
adjusting and kept getting into trouble with authorities.  He really did
not want to go back to Vietnam which was the reason he decided to get out.


3.  The applicant did not provide any documents in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 7 June 1971.  The application submitted in this case is dated
28 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 Regular Army on 2 February 1966 for a
period of four years.  He completed basic and advanced individual training
and was awarded military occupational specialty 63C (General Vehicle
Mechanic).  He served in Germany from 17 June 1966 to 23 September 1966.
He completed a tour in Vietnam from 30 January 1967 to 29 July 1968 (a
period of 18 months).

4.  The applicant was honorably discharged from active duty on 4 December
1968 for the purpose of immediate reenlistment.  He completed 2 years,
10 months and 3 days of service during this enlistment.

5.  The applicant reenlisted on 5 December 1968 for a period of three years
for assignment to Vietnam.  He was to report to the Overseas Replacement
Station on 16 January 1969.

6.  During the period January 1969 through December 1969, the applicant
received three Article 15s for various offenses such as:  (1) being absent
from his unit; (2) violating a lawful general regulation by possessing
alcoholic beverages in his locker located in the billets; (3) failing to go
to his appointed place of duty and disobeying a lawful order from his
superior commissioned officer.
7.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he was
absent without leave (AWOL) from 3 March 1969 through 21 March 1969.
However, there is no record of nonjudicial punishment for this offense.

8.  He was reassigned to Vietnam on 7 April 1969.

9.  On 16 March 1970, he accepted punishment under Article 15 for
wrongfully appropriating a Government vehicle and for being absent from his
unit.

10.  He departed Vietnam on 29 March 1970 and arrived at Fort Jackson, SC
on or about 19 May 1970.  There is no evidence to show he was placed on
orders for assignment to Vietnam after this date.

11.  Charges were preferred against the applicant on 6 May 1971 for being
AWOL from 15 July 1970 to 4 May 1971.  The applicant consulted with legal
counsel and voluntarily requested discharge for the good of the service in
lieu of trial by court-martial under the provisions of Army Regulation 635-
200, chapter 10.  In doing so, he admitted guilt to the offense charged and
acknowledged that he might encounter substantial prejudice in civilian life
and that he might be ineligible for many or all Army benefits administered
by the Veterans Affairs (VA) if an undesirable discharge was issued.  The
applicant did not submit statements in his own behalf.

12.  On 12 May 1971, the applicant was interviewed by an Assistant
Adjutant.  The interview indicated that the applicant's family had both
health and financial problems and he had no previous civilian felony
convictions.  During his interview, the applicant stated that he felt a
greater responsibility to his parents in their "waning" years that he did
to the military.  The Assistant Adjutant stated that the applicant would
continue to go AWOL as long as it would help his parents.  He also stated
that the applicant refused to soldier and should be eliminated in
accordance with his request.

13.  On 1 June 1971, the separation authority approved the discharge under
the provisions of Army Regulation 635-200, chapter 10 with issuance of an
Undesirable Discharge Certificate.

14.  Accordingly, the applicant was discharged on 7 June 1971 under the
provisions of Army Regulation 635-200, chapter 10 for the good of the
service with an undesirable discharge.  He had completed 1 year, 7 months
and 27 days active military service that period with 311 days of lost time.

15.  There is no indication that the applicant applied to the Army
Discharge Review Board within its 15-year statute of limitations.

16.  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.  A
discharge under other than honorable conditions is normally considered
appropriate.  However, at the time of the applicant's separation the
regulation provided for the issuance of an undesirable discharge.

17.  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 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.  There is no indication that the
request was made under coercion or duress.

2.  The applicant was advised of the effects of an undesirable discharge
and that he might be deprived of many or all Army and VA benefits.  He was
afforded the opportunity to submit statements in his own behalf, but he
declined to do so.

3.  The applicant's honorable service is noted.  However, the evidence of
record shows he received four Article 15s and was AWOL on three separate
occasions for 311 days during the period under review.

4.  Based on the applicant's interview during chapter 10 processing, he
admitted that he continued to go AWOL to assist his parents not because he
was on assignment orders back to Vietnam.  There is no evidence to show he
attempted to request a hardship discharge or compassionate reassignment.

5.  The applicant has not presented any evidence to show that the discharge
process was flawed, in error or unjust.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 7 June 1971; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 6 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 RELIEF

________  ________  ________  GRANT FORMAL HEARING

JS________  JM______  LF _____  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                 |AR2004100615                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040622                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19710607                                |
|DISCHARGE AUTHORITY     |AR635-200, chapter 10                   |
|DISCHARGE REASON        |For the Good of the Service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |