RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          9 September 2004
      DOCKET NUMBER:  AR2004101031


      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. James E. Vick                 |     |Chairperson          |
|     |Mr. James E. Anderholm            |     |Member               |
|     |Ms. Linda D. Simmons              |     |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 changed to a fully honorable discharge.

2.  The applicant states, in effect, that he was advised that he could sign
a request for separation or he would face additional charges.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 28 October 1971, the date of his separation from active duty.
The application submitted in this case is dated 10 November 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 official military personnel file show that on 19 March
1971, he was inducted in the Army of the United States and on 29 March
1971, he was assigned to Fort Campbell, Kentucky, for basic combat training
(BCT).

4.  The applicant never completed BCT and he was never awarded a military
occupational specialty (MOS).

5.  The available evidence show that the applicant left his BCT unit in an
absent without leave (AWOL) status on four separate occasions:  18-24 April
1971;
7 June-5 July 1971; 8 July-2 August 1971; 3 August-17 September 1971; and
24-29 September 1971.

6.  On 5 October 1971, special court-martial charges were preferred against
the applicant for the above AWOL offenses.  There is no evidence that he
ever received any prior punishment.



7.  The available evidence also shows that on 5 October 1971, the applicant
consulted with legal counsel and requested discharge for the good of the
service in lieu of trial by court-martial under the provisions of chapter
10, Army Regulation 635-200.  He was advised that he could receive a UD.
He acknowledged that he understood the ramifications of receiving a UD.  He
also declined to submit a statement in his own behalf.

8.  On 13 October 1971, the applicant's unit commander indicated in a
report of investigation that the above charges were substantiated by
competent evidence and that the maximum punishment for these offenses were
a dishonorable discharge, total forfeitures of all pay and allowances and
confinement at hard labor for 1 year.  Additionally, the commander stated
that the applicant's conduct and efficiency were rated unsatisfactory and
that he believed the applicant could not be rehabilitated because he had
accumulated more than 110 days of lost time by going AWOL on five different
occasions.

9.  On 18 October 1971, the unit commander recommended that the applicant's
request for discharge for the good of the service be approved with a UD.
Both the brigade and battalion commanders recommended separation with a UD.
 On 26 October 1971, the brigade general in command of the Army Training
Center, Fort Campbell, Kentucky approved the applicant's request and
directed separation with a UD.

10.  On 28 October 1971, the applicant was separated under the provisions
of chapter 10, Army Regulation 635-200 with a UD.  He had completed 3
months and 18 days of active military service and he had 114 days of lost
time due to being AWOL.

11.  The available evidence does not show the applicant has ever applied to
the Army Discharge Review Board (ADRB) for an upgrade of his discharge
within the ADRB's 15-year statute of limitations.

12.  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 a UD.

13.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality the of the member's service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

14.  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.  The type of discharge directed
and the reasons for discharge were appropriate considering the facts of the
case.

2.  The applicant was continuously AWOL from BCT after being given several
opportunities to do the right thing.  Court-martial charges were pending
against him at the time of his request for separation.  Therefore, he
risked serious consequences to include a prison sentence had he remained in
an active duty status.

3.  The applicant's record of service includes completion of only 3 months
and
18 days of his 2-year enlistment obligation and 114 days of lost time, due
to being AWOL and in confinement.  As a result, his Army service does not
meet the standards of acceptable conduct and performance of duty for Army
personnel.  Therefore, he is not authorized a honorable discharge.

4.  The applicant's record of service that includes five periods of AWOL
and confinement that equals 114 days of lost time also is not satisfactory
service.  Therefore, he is not authorized a general discharge.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 October 1971; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
27 October 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

__jev___  __jea___  __lds___  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.



                                  James E. Vick
            ______________________
                    CHAIRPERSON










                                    INDEX

|CASE ID                 |AR2004101031                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040909                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |19711028                                |
|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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