RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          21 September 2004
      DOCKET NUMBER:  AR2004101091


      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. Luis Almodova                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James C. Hise                 |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Paul M. Smith                 |     |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)
which was upgraded to a general discharge (GD), under honorable conditions,
be affirmed.

2.  The applicant states, in effect, that he was in jail for 45 days.  This
lawyer came to see him and said that he had two choices – spend 2 years in
jail at hard labor or take a discharge.  He was wrongly informed about the
sentence he was going to get.

3.  The applicant provides a copy of a DD Form 214, Armed Forces of the
United States Report of Transfer or Discharge, with an effective date 24
March 1970; a copy of a DD Form 214, Report of Separation from Active Duty,
with an effective date of 20 March 1971; a copy of a DD Form 215,
Correction to DD Form 214, Report of Separation from Active Duty, dated 31
August 1978; and a cover letter from the District Officer, Division of
Veterans Affairs, North Carolina Department of Administration, dated 18
November 2003.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice that
occurred on 10 August 1978.  The application submitted in this case is
dated 4 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 enlisted in the Regular Army for 3 years on 22 January
1969.  On 24 March 1970, he was honorably discharged, in Hanau, Germany,
for the purpose of immediately reenlisting in the Regular Army for 3 years
for an overseas assignment option – assignment to the Republic of Vietnam.

4.  On 24 September 1969, the applicant received nonjudicial punishment
(NJP) under the provisions of Article 15 of the Uniform Code of Military
Justice (UCMJ) for being absent from his place of duty on 23 September
1969.  The imposed punishment was a forfeiture of $61 per month, for 2
months; reduction to the rank and pay grade Private, E-1; and restriction
for 14 days.  The applicant did not appeal the punishment.

5.  The applicant’s records document that the highest rank and pay grade he
held on active duty was Specialist Four, E-4.  He attained this rank on 13
January 1970 while he served in Germany.

6.  The applicant arrived in Vietnam on 31 May 1970 and was assigned to
Headquarters and Headquarters Company, 1st Battalion, 6th Infantry, 198th
Infantry Brigade.

7.  On 9 September 1970, the applicant departed from his organization in an
absent without leave (AWOL) status.  He returned to his unit on 11
September 1970 and again departed AWOL on 13 September.  He was dropped
from the rolls of the organization on the same date.  The applicant
remained absent until 6 October 1970.

8.  On 16 December 1970, the applicant was convicted, pursuant to his
pleas, by a Special Court-Martial that was convened by Headquarters, 198th
Infantry Brigade, for the above absences.  The applicant was sentenced to
confinement at hard labor for 45 days; forfeiture of $50 per month, for 3
months; and reduction to the pay grade, E-1.  That portion of the sentence
that provided for confinement at hard labor was suspended for 45 days.

9.  DA Form 188, Extract Copy of Morning Report, dated 11 February 1971,
shows that the applicant was returned to his unit when he was apprehended
by the Military Police in the vicinity of Gate Four, at Chu Lai, Vietnam,
on 4 January 1971.  Part IV (Prehearing Review), Item 3 (Overall
Assessment), of OSA Form 172, shows that the applicant had departed AWOL
from his unit on 17 December 1970.

10.  The same DA Form 188, which was referred to in paragraph 9 above,
shows that the applicant departed AWOL again on 4 January 1971 and was
dropped from the rolls of his organization on the same date.  The OSA Form
172 referred to in the paragraph above shows that the applicant returned to
military control on 27 January 1971.

11.  The applicant's request for administrative discharge from the Army, in
lieu of court martial, is not on file in the applicant's service personnel
records for review.
12.  The applicant was discharged in the rank and pay grade of Private, E-
1, on 20 March 1971, under the provisions of Army Regulation (AR) 635-200,
Chapter 10.  The Separation Program Number that was applied to his DD Form
214 is, "246" (Discharge for the Good of the Service).  The applicant's
character of service was characterized as, "Under Other than Honorable
Conditions."

13.  On the date of his discharge, the applicant had completed 2 years,
1 month, and 3 days active military service on both his enlistments.

14.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and
Campaign Ribbons Awarded or Authorized), of the applicant's DD Form 214,
shows that he was awarded the National Defense Service Medal; the Vietnam
Service Medal, and one overseas service bar.  The record contains no
documentary evidence of acts of valor, achievement, or service warranting
special recognition.

15.  On 18 October 1974, the applicant applied to the Army Discharge Review
Board (ADRB) for an upgrade of his discharge.  An upgrade of the
applicant's discharge was denied but changes were made to Item 15
(Reenlistment Code) and to Item 30 (Remarks), of the applicant's DD Form
214, with an effective date of 20 March 1971.  Changes were made to the
applicant's DD Form 214 on 27 May 1975.

16.  On 28 March 1977, the applicant requested, in effect, that his
discharge be reviewed with a view towards having it upgraded.  The
applicant was provided the appropriate form and on 27 June 1977, the
applicant requested and was given a "de Novo" review of his discharge under
the DOD Discharge Review Program (Special) (SDRP).

17.  On 19 January 1978, the applicant's undesirable discharge, with a
characterization of, Under Other Than Honorable Conditions, was upgraded to
an Under Honorable Conditions (General) Discharge by the SDRP.

18.  On 27 July 1978, the applicant was notified that a review of his
discharge had been completed by the ADRB as required by Public Law (PL) 95-
126.  As a result of this review, a preliminary determination was made that
he would not qualify for upgrading under the new uniform standards for
discharge review.  The applicant was advised that he could request an
expedited final determination and that he was given the option of appearing
before the board in person.

19.  The record is silent about any action(s) that the applicant may have
taken; however, on 10 August 1978, he was informed that the ADRB could not
affirm his DOD-Special Discharge Review Program upgraded discharge.

20.  On 31 August 1978, a DD Form 215 was prepared to correct the DD Form
214, with an effective date of 20 March 1971.  Item 27 (Remarks) was
changed to add "Disch reviewed UP PL 95-126 and a determination made that
recharacterization of service was warranted UP DOD SDRP 4 Apr 77."

21.  AR 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 submit, at any time
after the charges have been preferred, 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, but the
separation authority may direct a general discharge or an honorable
discharge if such is merited by the soldier's overall record and if the
soldier's record is so meritorious that any other characterization clearly
would be improper.

22.  AR 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 of the
member’s service generally has met the standards of acceptable conduct and
performance of duty for Army personnel, 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.

23.  On 4 April 1977, the Department of Defense (DOD) directed each armed
service to conduct a review of discharges of former service members who
were discharged, between 4 August 1964 and 28 March 1973, later expanded
until 1977, with an undesirable to a general discharge.  This program was
entitled the DOD Discharge Review Program (Special) or SDRP.  Upgrade of
such discharges to either a general or an honorable level was mandated, if
the former service member met one of certain criteria, to include:  for
being wounded in combat in Vietnam, for receiving a military decoration
other than a service medal, for successful completion of a normal tour in
Southeast Asia, for receiving an honorable discharge from a previous tour
of service and for certain other criteria.  On 8 October 1979, Public Law
95-126, was enacted.  It denied veteran benefits, administered by the
Veterans Administration, to any former service member who
was AWOL for more than 180 consecutive days, who was classified as a
deserter or who was classified as a conscientious objector.  In addition,
the law required the DOD to establish historically consistent, uniform
standards for all discharge reviews.  The DOD was required to review all
discharges previously upgraded under the SDRP, and certain other programs,
utilizing these uniform standards.  This review would establish the former
service member’s right to request that the VA grant favorable action on a
request for veteran benefits.  If the upgrade of a favorable SDRP was not
affirmed under uniform standards, the former service member would not be
entitled to most VA benefits, unless he or she was otherwise entitled.
However, the upgraded discharge under the
DOD-SDRP would stand for other reference purposes.

DISCUSSION AND CONCLUSIONS:

1.  As noted by the evidence of record, the applicant's request for
administrative discharge from the Army, in lieu of court martial, is not on
file in the applicant's service personnel records for review.  However, The
evidence of record shows the applicant was discharged under the provisions
of Chapter 10, AR 635-200, for the good of the service in lieu of trial by
court-martial.  In connection with such a discharge, the applicant was
charged with the commission of an offense punishable under the UCMJ with a
punitive discharge.  Procedurally, the applicant was required to consult
with defense counsel, and to voluntarily, and in writing, request
separation from the Army in lieu of trial by court-martial.  In doing so,
the applicant admitted guilt to the stipulated offenses under the UCMJ.

2.  The applicant’s record contains, a now voided, DD Form 214, which was
properly constituted on the applicant's discharge date.  This document
identifies the reason and characterization of the discharge and the Board
presumed Government regularity in the discharge process.  The applicant was
given an undesirable discharge and his service was characterized as Under
Other Than Honorable Conditions.

3.  In the absence of information to the contrary, it is believed that all
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout the separation process.  The
characterization of service for this type of discharge is normally under
other than honorable conditions.  It is also believed that the applicant
was aware of that prior to requesting discharge.
4.  On 19 January 1978, the applicant's undesirable discharge, with a
characterization of, Under Other Than Honorable Conditions, was upgraded to
an Under Honorable Conditions (General) Discharge by the SDRP.

5.  On 10 August 1978, the applicant was informed that the ADRB could not
affirm his DOD-Special Discharge Review Program upgraded discharge.

6.  In order to justify correction of a military record, the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy this requirement.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 August 1978; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 9 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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jch___  __bje___  __pms___  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 C. Hise
            ______________________
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR2004101091                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040921                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19710320                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 10                  |
|DISCHARGE REASON        |For the Good of the Service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  360  |144.0000                                |
|2.  396                 |144.0135                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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