RECORD OF PROCEEDINGS


      IN THE CASE OF:



      BOARD DATE:           1 July 2004
      DOCKET NUMBER:   AR2004100787


      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 that his discharge be upgraded.

2.  The applicant states he was young and was introduced to cigarettes and
drugs in Vietnam.  He states that he needs an upgrade to qualify for
Department of Veterans Affairs (VA) health care benefits.

3.  The applicant provides no supporting documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 23 August 1978, the date of his discharge.  The application
submitted in this case is dated 29 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 21 April
1969, completed training as an infantryman, and was assigned to duty in
Vietnam.  The available record does not contain any information on the
applicant’s service in Vietnam except that he earned the Combat Infantryman
Badge and that he reenlisted on 27 January 1970.

4.  While stationed in Germany, on 1 November 1970, the applicant was AWOL
(absent without leave).  He remained absent until apprehended by civilian
authorities and returned to military control on 17 July 1978. Court-martial
charges were preferred for this extended period of AWOL.

5.  On 26 July 1978, 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.  He acknowledged that he could be discharged under other than
honorable conditions (UOTHC).  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
such an UOTHC discharge.

6.  A 26 July 1978 Standard Form 93 (Report of Medical Examination) shows
that the applicant was found medically qualified for a Chapter 10
separation.  There is no indication of any drug, alcohol, or tobacco
concerns or problems.

7.  On 10 August 1978, the separation authority approved the applicant's
request for discharge and directed that he be separated UOTHC.

8.  The applicant was discharged on 23 August 1978.  He had 1 year, 7
months, and 17 days of creditable service with 2,772 days of lost time and
27 days of excess leave.  His overseas time is listed as 4 months and 1
day.

9.  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.

10.  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.

11.  There is no evidence in the available records that the Army Discharge
Review Board ever reviewed the applicant's discharge.

DISCUSSION AND CONCLUSIONS:

1.  The Board notes the applicant's honorable service during his shortened
tour in Vietnam; however, this service is not so meritorious as to outweigh
the extended AWOL that resulted in the applicant's discharge.

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.  Records show the applicant should have discovered the error or
injustice now under consideration on 23 August 1978; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 22 August 1981.  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                 |AR2004100787                            |
|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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