RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:                   OCTOBER 28, 2004
      DOCKET NUMBER:             AR2004103858


      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:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. Lawrence Foster               |     |Member               |
|     |Ms. Marla J. N. Troup             |     |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 be upgraded to an
honorable discharge.

2.  The applicant states, in effect, that the type of discharge that he
received is too severe considering the nature of his offenses.

3.  The applicant provides no additional documentation in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of error or injustice, which
occurred on 23 August 1971.  The application submitted in this case is
dated 2 February 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.  On 22 May 1970, he enlisted in the Army in New Orleans, Louisiana, for
2 years in the pay grade of E-1.  Upon completion of his basic combat
training, he was transferred to Fort Jackson, South Carolina, for
completion of his advanced individual training.

4.  The applicant was still in advanced individual training when he was
convicted by a summary court-martial on 3 October 1970, of being absent
without leave (AWOL) from 10 August 1970 until 10 September 1970.  He was
sentenced to confinement at hard labor and a forfeiture of pay.

5.  Nonjudicial punishment (NJP) was imposed against the applicant on
9 November 1970, for being AWOL from 30 October 1970 until 5 November 1970.
 His punishment consisted of a forfeiture of pay and restriction to the
company area.

6.  He went AWOL again on 12 January 1971 and he remained absent in
desertion until he returned to military control on 9 August 1971.
7.  The applicant was notified that charges were pending against him on
11 August 1971.  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 of trial by court-
martial.  Along with his request for discharge, he submitted a statement in
his own behalf indicating that his military career was not worth anything
to him or to the Army.  He stated that he hated the Army and that he had
became prejudiced against everything and everyone.  He stated that he went
from fights to nonjudicial punishment and that he did not believe that he
could ever adjust to military life because he had money problems at home.
He stated that he would not be able to make as much money in the Army as he
could if he was at home and that since he had been in the Army he had
developed a drug problem, which caused him to have flashbacks.  He stated
that he could not control himself and that he may be a danger to everyone
in a combat situation.

8.  The applicant went on to state that if he got the chance, he would go
AWOL again and again or that he would probably wind up hurting himself or
someone else.  He stated that it would save the Army a lot if he were to be
granted a chapter 10 discharge because he hated the Army and had grown
prejudice against “whites”.  He stated that he understood that he could
receive an undesirable discharge and that he did not desire any medical
treatment for any drug abuse problems.  He concluded his statement by
thanking anyone who read his statement and helping him to receive an
undesirable discharge.

9.  The appropriate authority approved the request for discharge on
19 August 1971.  Accordingly, on 23 August 1971, the applicant was
discharged under the provisions of Army Regulation 625-200, chapter 10, for
the good of the service in lieu of trial by court-martial.  He had
completed 1 year, 2 months and 1 day of total active service and he was
furnished an Undesirable Discharge Certificate.

10.  The available record fails to shows that the applicant ever applied to
the Army Discharge Review Board for an upgrade of his discharge within that
boards’ 15-year statute of limitations.

11.  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 applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors, which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

3.  The applicant's contentions have been noted.  However, the available
records show that he had no desire to remain in the Army.  In the statement
that he submitted in his own behalf at the time of his discharge, he stated
that he hated the Army and that, if given the chance, he would continue to
go AWOL.  He had NJP imposed against him and his was convicted by a summary
court-martial for being AWOL.  Considering his numerous acts of
indiscipline, it does not appear that the type of discharge that he
received was too severe.

4.  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.

5.  Records show the applicant should have discovered the error or
injustice now under consideration on 23 August 1971; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 22 August 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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

mt______  lf ______  rjw_____  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.




                                  ____Raymond J. Wagner____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004103858                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041028                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19710823                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |CHAPTER 10/FOR THE GOOD OF SERVICE      |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  689  |144.7000.0000/FOR GOOD OF SERVICE       |
|2.  708                 |144.7100.0000/AWOL                      |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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