RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:             OCTOBER 5, 2004
      DOCKET NUMBER:     AR2004101775


      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. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. John Meixell                  |     |Member               |
|     |Mr. Larry C. Bergquist            |     |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 the undesirable discharge of his deceased
son, a former service member (FSM) be upgraded to an honorable discharge.

2.  The applicant states, in effect, that during the time that the FSM
served in the Army, he believes that his son’s drug problem was not
understood.  He states that he once made an attempt to speak with the
commanding officer of the FSM and he got so frustrated trying to understand
why his son was involved in wrong doing.  He goes on to state that the FSM
attended drug rehabilitation programs while he was in the service and that
he also admitted himself to two private drug rehabilitation centers in
later years.  He concludes by stating that the FSM worked hard to support
his children and had a loving family who would like nothing more than to
have his discharge changed to so that a service marker can be placed on his
grave.

3.  The applicant provides in support of his application, copies of
documentation maintained in the FSM’s official military record.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 4 April 1973.  The application submitted in
this case was received on 5 January 2004.

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 FSM enlisted in Army in Phoenix, Arizona, for 2 years on 25
February 1969, in the pay grade of E-1.  He successfully completed his
training as a combat engineer.  He was promoted to the pay grade of E-2 on
25 May 1969 and to the pay grade of E-3 on 8 September 1969.

4.  He completed 8 months and 2 days of total active service and he was
honorably discharged on 26 October 1969, for the purpose of immediate
reenlistment.  The FSM reenlisted in the Army in Colorado Springs,
Colorado, for
6 years on 27 October 1969.  He was transferred to Vietnam on 1 July 1970
and he was promoted to the pay grade E-4 on 17 September 1970.  He returned
to the Continental United States on 24 November 1971.

5.  A review of the available records shows that the FSM was absent without
leave (AWOL) from 29 February until 10 March 1972 and that he was AWOL on
14 March 1972.  The record of nonjudicial punishment (NJP) is unavailable
for review by the Board; however, the record does show that he was reduced
in pay grade on 21 March 1972.

6.  The FSM had NJP imposed against him on 28 March 1974, for being AWOL on
24 March 1972.  His punishment consisted of extra duty.

7.  The FSM went AWOL again for 1 day on 28 March 1974.  The record is void
of any imposition of punishment for this AWOL incident.

8.  On 28 April 1972, NJP was imposed against him for being AWOL from
24 April until 27 April 1972.  His punishment consisted of a reduction in
pay grade, a forfeiture of pay and extra duty.

9.  The FSM went AWOL again on 28 April 1972, and he remained absent until
he was apprehended by civil authorities on 15 May 1972 and charged with
receiving and concealing stolen property of the United States Government.
On 1 June 1972, he was returned to military control and placed in pretrial
confinement.

10.  On 7 June 1972, while in confinement, the FSM submitted a statement in
his own behalf indicating that he believed that he would continue to go
AWOL until he was discharged from the Army.  In his statement, he stated
that he spent 19 months in Vietnam using drugs and that he had no desire to
continue his career in the Army.  He further stated that during the past 3
months, he had been reduced from the pay grade of E-4 to the pay grade of E-
1 as a result of his going AWOL and that he had several other minor AWOL
incidents.

11.  In item number 22 (general impression and possibility of
rehabilitation) of an extract copy of the FSM’s Enlisted Qualification
Record, his commanding officer (CO) stated that the FSM had a tendency to
go AWOL.  He stated that the FSM had been classified as a failure in the
drug amnesty program and that he had been reduced in pay grade from E-4 to
E-2 for being AWOL.  His CO also stated that his unkempt appearance draws
attention to him and that he would not cooperate with his superiors.

12.  On 19 June 1972, the FSM was notified that charges were pending
against him for being AWOL from 24 April until 27 April 1972 and from 28
April until 15 May 1972.  He acknowledged receipt of the notification and
on 26 June 1972, after consulting with counsel, he waived his rights and he
submitted a request for discharge, under the provisions of Army Regulation
635-200, chapter 10, for the good of the service, in lieu trial by court-
martial.

13.  Further review of the records show that the FSM went AWOL again on
3 July 1972.  In his absence, the appropriate authority approved the
request for discharge on 7 July 1972.  Accordingly on 4 April 1973, FSM was
discharged in absentia, under the provisions of Army Regulation 635-200,
chapter 10, for the good of the service, in lieu of trial by court-martial.
 He had completed 3 years 11 months and 19 days of total active service and
he was furnished an Undesirable Discharge Certificate.

14.  On 18 November 1975, the Army Discharge Review Board denied the FSM’s
request for an upgrade of his discharge.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The FSM’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.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a
trial by court-martial, the FSM voluntarily requested a discharge for the
good of the service and he continued to go AWOL.  He even went AWOL before
the request for discharge could be approved.  In the statement that he
submitted in his own

behalf, he stated that he would continue to go AWOL as he had no desire to
remain in the Army and based on his numerous AWOL offenses, the Board is
convinced that he would have continued to go AWOL had he been allowed to
remain in the Army.

4.  The applicant’s contentions regarding drug use by the FSM and the
supporting documents that he has submitted in behalf of his application
have been considered by the Board.  However, they are not sufficiently
mitigating to warrant relief when compared to the seriousness the FSM's
offenses.

5.  While the Board offers its condolences to the applicant for his loss,
the Board finds that there is not sufficiently mitigating evidence in the
FSM’s case to warrant an upgrade of a duly constituted discharge.

6.  In order to justify correction of a military record the applicant must
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 FSM should have discovered the alleged error or
injustice now under consideration on 18 November 1975; therefore, the time
for him to file a request for correction of any error or injustice expired
on 17 November 1978.  However, the FSM did not file within the 3-year
statute of limitations and his next of kin 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

kn______  jm______  lb  ______  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 FSM’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.




            ___Kathleen A. Newman___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004101775                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041005                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19730404                                |
|DISCHARGE AUTHORITY     |AR 635-200/CH 10                        |
|DISCHARGE REASON        |689/FOR THE GOOD OF THE SERVICE         |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  708  |144.7100.0000/ CONDUCT TRIABLE          |
|2.  709                 |144.7101.0000/AWOL                      |
|3.  715                 |144.7200.0000/LARCENY                   |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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