RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           31 August 2004
      DOCKET NUMBER:  AR2004101000


      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. Rosa M. Chandler              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |Member               |
|     |Mr. Robert L. Duecaster           |     |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
to that of a honorable discharge.

2.  The applicant states, in essence, he was suffering from posttraumatic
stress disorder (PTSD) at the time of separation and he was unable to make
an intelligent, informed decision.  He received no treatment, no legal
representation, and he was coerced into requesting separation under the
provisions of chapter 10.  He believes that it is an injustice that he
received a less than honorable discharge after 4 years of exemplary
service, which included 2 years in Vietnam.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 12 October 1973.  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.  Prior to the period of service under review, the applicant served
honorably in the Regular Army (RA) from 29 October 1968 to 29 November
1970.  He served in military occupational specialty (MOS) 93H (Air Traffic
Control Tower Operator). On 2 June 1970, he was assigned to Vietnam.

4.  On 30 November 1970, while assigned to Vietnam, the applicant
reenlisted in the RA for a period of 6 years and in his prior MOS.  He was
issued an honorable discharge at that time of separation.  On 3 July 1972,
he returned to the United States and he was assigned to Fort Hood, Texas.
He served in Texas without any recorded misconduct.

5.  The applicant was again assigned to Vietnam from 2 September 1972 to
15 February 1973.  On 2 April 1973, he returned to Fort Hood Texas with
duties in his MOS.  He departed his unit in an absent without leave (AWOL)
status from
4 April 1973 to 7 September 1973 until he returned to military control at
Fort Sill, Oklahoma and was placed in pretrial confinement until he was
separated.  The highest grade he attained was sergeant, pay grade E-5.

6.  The applicant's records do not contain all of the facts and
circumstances surrounding the discharge process.  However, his records do
contain a properly constituted DD Form 214 that was prepared at the time of
separation and authenticated by the applicant.  The DD Form 214 shows that,
on 12 October 1973, he was separated with a UD for the good of the service-
in lieu of trial by court-martial under the provisions of chapter 10, Army
Regulation 635-200, in pay grade E1.  He had completed more than 4 months
and 4 days of active military service on the enlistment under review and he
had 191 days of lost time due to being AWOL and in military confinement.
He had also completed 2 years, 1 month and 1 day of prior honorable active
military service.

7.  On 12 October 1973, the applicant signed a Statement of Medical
Condition which indicates that he underwent a separation medical
examination that determined he was qualified for separation.

8.  An Army Discharge Review Board (ADRB) Brief, dated 6 May 1974 shows
that at the time of the ADRB review, a charge sheet, dated 10 September
1973 was available and it showed the applicant was charged under the
provisions of the Uniform Code of Military Justice with a violation of
Article 86 (AWOL).  It further states the applicant was apprehended by
civilian authorities and returned to military control after he had been
AWOL for 153 days.  At that time, the applicant contended that he had
received a 10-year probation sentence in a civilian court for robbery and
possession of marijuana and that, on or about 3 August 1973, he attempted
suicide.  The applicant stated that he had been denied adequate legal
representation; that he had been coerced into requesting separation under
the provisions of chapter 10 and threatened with a longer period of
confinement if he did not accept a UD.  On 31 May 1974, the ADRB denied the
applicant's request for an upgrade of his discharge.

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
UD is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The available records show the applicant was discharged under the
provisions of chapter 10, Army Regulation 635-200, for the good of the
service.  Although the facts and circumstances surrounding the discharge
process are missing, he would have been charged with the commission of an
offense punishable under the UCMJ with a punitive discharge.  He would have
consulted with defense counsel and signed a statement indicating he had
been informed he could receive a UD.  He would also have been advised of
the ramifications of receiving such a discharge.  He would have voluntarily
requested discharge to avoid trial by court-martial.  In doing so, he would
have admitted guilt to the stipulated offense(s) under the UCMJ.  The Board
presumes administrative regularity and the applicant has provided no
information that would indicate the contrary.

2.  The applicant had an extended period of AWOL, which demonstrates that
his conduct was inconsistent with the Army’s standards for acceptable
personal conduct and his overall quality of service does not warrant an
upgrade of his discharge.

3.  The Board found no evidence the applicant was denied legal
representation or that his chain of command's actions were arbitrary or
capricious.

4.  In 1973, PTSD had not been diagnosed as being an illness and there is
no evidence that the applicant indicated that he was experiencing any
medical problems at the time of separation.  He has provided no evidence to
the contrary.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 October 1973; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
11 October 1976.  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

__jns___  __jrs___  __rld___  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 N. Slone
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004101000                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040831                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |19731012                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 10                      |
|DISCHARGE REASON        |A60.00                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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