RECORD OF PROCEEDINGS


      IN THE CASE OF:



      BOARD DATE:           1 July 2004
      DOCKET NUMBER:   AR2004100618


      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. G. E. Vandenberg              |     |Analyst              |


  The following members, a quorum, were present:

|     |Ms. Lana E. McGlynn               |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. John T. Meixell               |     |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, in effect, that his discharge be upgraded.

2.  The applicant states he would like to have his discharge "turned over".
 He states, in effect, that an upgrade is warranted because it has been 33
years since his discharge and that he went to Vietnam when others went to
Canada.  He admits that what he did was wrong but he still feels that,
after he returned from Vietnam, it was not so bad to go AWOL (absent
without leave) to help his parents.

3.  The applicant provides no supporting documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 25 September 1970, his date of separation.  The application
submitted in this case is dated 27 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 record shows that the applicant entered active duty on 22 November
1966 and completed basic training without incident.

4.  During advanced individual training (AIT) the applicant was AWOL from
24 November 1966 through 1 December 1967 and from 6 March 1967 through 12
March 1967.  Nevertheless, he received excellent conduct and efficiency
ratings at the end of AIT.

5.  On 10 May 1967, a summary court-martial found the applicant guilty of
two periods of AWOL, 6 March 1967 through 12 March 1967, and 27 March 1967
through 2 April 1967.  His sentence was forfeiture of $64.00 pay per month
for one month and confinement for 30 days.  The applicant was released from
confinement on 21 May 1967.

6.  He received nonjudicial punishment (NJP) under Article 15, Uniform Code
of Military Justice (UCMJ) on:

      a.  29 May 1967, for failure to go to his appointed place of duty; and



      b.  5 July 1967, for absenting himself from his place of duty.


7.  The applicant was assigned to the 524th Quartermasters Company in
Vietnam from 25 August 1967 through 15 August 1968.  His conduct and
efficiency were rated as excellent during this period and he was advanced
to pay grade E-4.

8.  On 14 April 1969, a special court-martial found the applicant guilty of
two periods of AWOL, 29 November 1968 through 13 January 1969, and
18 February 1969 through 18 March 1969.  His sentence was reduction to
private first class (E-3) and forfeiture of $65.00 pay per month for six
months.

9.  On 19 August 1970, court-martial charges were preferred for three
periods of AWOL; 10 May 1969 through 21 October 1969, 10 November through 3
April 1970, and 7 May 1970 through 18 August 1970.  After consulting with
counsel and being advised of his rights and options, the applicant
submitted a formal request for discharge for the good of the service in
lieu of trial by court-martial under the provisions of Army Regulations 635-
200, chapter 10.  He acknowledged he had been advised of and understood his
rights under the Uniform Code of Military Justice.  He acknowledged he was
guilty of the stipulated offenses or lesser-included charges, which could
also result in a punitive discharge.  He acknowledged that he could be
discharged under other than honorable conditions and receive an undesirable
discharge (UD).  He acknowledged that such a discharge would deprive him of
many or all of his benefits as a veteran, and that he could expect to
experience substantial prejudice in civilian life if he received a UD.

10.  On 12 September 1970, the separation authority approved the
applicant's request and directed that he be separated with an undesirable
discharge.

11.  On 25 September 1970, the applicant was separated under the provisions
of Army Regulation 635-200, chapter 10.  He had served 1 year, 3 months and
6 days of creditable service with 595 days of lost time due to AWOL and/or
confinement.

12.  On 13 July 1982 the ADRB denied his request for an upgrade.

13.  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.


14.  The Manual for Courts-Martial, Table of Maximum Punishments, sets
forth the maximum punishments for offenses chargeable under the UCMJ.  A
punitive discharge is authorized for offenses under Article 86, for periods
of AWOL in excess of 30 days.

15.  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 Discharge Review Board (ADRB) are by statute allowed
15 years to apply there, and that this Board's exhaustion requirement (AR
15-185, paragraph 2-4), effectively shortens that filing period, has
determined that the 3 year limit on filing to the ABCMR should commence on
the date of final denial by the ADRB.  In complying with this decision, the
Board 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.  The Board will continue to excuse any failure to
timely file when it finds it would be in the interest of justice to do so.

DISCUSSION AND CONCLUSIONS:

1.  The Board notes the applicant's honorable service in Vietnam; however,
this service was not so meritorious as to outweigh the number of offences
and total number of days of lost due to AWOL.

2.  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.  His service is appropriately
characterized by his overall record.

3.  There is no substantiating evidence to show that his parents had any
unusual problems or that the applicant's going AWOL was the only way to
solve their alleged problems.

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 13 July 1982.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 12 July 1985..  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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

_LEM __  ___LDS___  __JTM__  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 the 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 insufficient
evidence to show 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.





            _  _Lana E. McGlynn____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004100618                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040701                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |                                        |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144 Upgrade                             |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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