RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           14 September 2004
      DOCKET NUMBER:   AR2004104131


      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. Michael J. Fowler             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Ms. Karen A. Heinz                |     |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 discharge be upgraded from under other
than honorable conditions to an honorable discharge.

2.  The applicant states, in effect, that he had served meritoriously
during his tour in Vietnam.  However, upon his return, he failed to adjust
to stateside duty.

3.  The applicant further states that he was told during his separation
process that an automatic discharge upgrade was in order.

4.  The applicant provides no documentation in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 18 March 1974, the date of his discharge.  The application
submitted in this case is dated 17 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.  Evidence of record shows that the applicant entered active duty on
21 June 1971.  He successfully completed basic training and advanced
individual training and was awarded the military occupational specialty
11B10 (Light Weapons Infantryman).

4.  On 1 May 1972, the applicant was punished under Article 15, Uniform
Code of Military Justice, (UCMJ), for disobeying a lawful order from a
superior officer on 29 April 1972.  His punishment consisted of reduction
to private first class/pay grade E-3 and forfeiture of $77.00.

5.  Evidence of record shows that the applicant was absent without leave
(AWOL) for the period 15 December 1972 through 11 January 1973.

6.  Evidence of record shows that the applicant was AWOL from 16 January
1973 through 21 March 1973.  The applicant's record further shows that
civilian authorities apprehended him on 22 March 1973.  The applicant was
returned to military control at Fort Meade, Maryland, and subsequently
assigned to the Special Processing Detachment on 24 March 1973.

7.  On 18 April 1973, the applicant was convicted by a special court-
martial of violation of the Uniform Code of Military Justice, Article 86
for AWOL.  His sentence consisted of confinement at hard labor for three
months, forfeiture of $100.00 per month for three months, and reduction to
private/pay grade E1.  The sentence was adjudged on 18 April 1973.
However, the approval authority for Special Court-Martial Order Number 95,
dated 11 May 1973, suspended for six months that portion of the sentence to
confinement at hard labor for three months.

8.  Evidence of record shows that the applicant was AWOL from 25 April 1973
through 17 August 1973.  The applicant's record further shows that civilian
authorities apprehended him on 17 August 1973.  The applicant was returned
to military control at Fort Dix and subsequently assigned to the Special
Processing Detachment on 17 August 1973.

9.  Evidence of record shows that on 21 August 1973, charges were preferred
against the applicant for being AWOL from 25 April 1973 through 17 August
1973.

10.  Evidence of record shows that the applicant was AWOL from 29 September
1973 through 25 January 1974.  The applicant's record further shows that
civilian authorities apprehended him on 25 January 1974.  The applicant was
returned to military control at Fort Dix, New Jersey, and subsequently
assigned to the Special Processing Detachment on 25 January 1974.

11.  On 4 February 1974, the applicant consulted with his appointed counsel
at the United States Trial Defense Service, Fort Dix Field Office and
requested a discharge for the good of the service under the provisions of
chapter 10 of Army Regulation 635-200 (Personnel Separations).

12.  The applicant signed his request for discharge which showed that he
was making the request of his own free will; that he was afforded the
opportunity to speak with counsel; that he was advised that he may be
furnished an Under Other Than Honorable Discharge Certificate; that he will
be deprived of many or all Army benefits; that he may be ineligible for
many or all Veterans Administration benefits; and that he may expect to
encounter substantial prejudice in civilian life because of a discharge
under other than honorable conditions.
13.  On 25 February 1974, the applicant's request for discharge for the
good of the service was approved by the major general in command of Fort
Dix, New Jersey.

14.  On 18 March 1974, the applicant was discharged from active duty and
was issued an under other than honorable conditions discharge under the
provisions of chapter 10 of Army Regulation 635-200.  He served 1 year, 10
months, and 11 days of active duty service and had accrued 321 days of lost
time.

15.  The applicant applied to the Army Discharge Review Board (ADRB) to
upgrade his discharge.  On 19 June 1981, the ADRB reviewed and denied the
applicant's request for upgrade.  The ADRB determined that the applicant's
discharge was proper and equitable and that the discharge was properly
characterized as under other than honorable conditions.

16.  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.

17.  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 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.

18.  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.

19.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (Army Regulation 15-185,
paragraph 2-8), effectively shortens that filing period, has determined
that the 3 year limit on filing to the ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the Board has
adopted the broader policy of calculating the 3-year time limit from the
date of exhaustion in any case where a lower level administrative remedy is
utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he served meritoriously in Vietnam and
failed to adjust to stateside duty.  However, the applicant's record shows
that during his Vietnam service from 18 December 1971 through 23 June 1972,
he received an Article 15 for disobeying a lawful order from a superior
officer.

3.  The applicant further contends that he was told during his separation
process that an automatic discharge upgrade was in order.

4.  The US Army does not have, nor has it ever had, a policy to
automatically upgrade discharges.  Each case is decided on its own merits
when an applicant submits an application to either the Army Discharge
Review Board or this Board requesting change in discharge.  Changes may be
warranted if the Board determines that the characterization of service or
the reason for discharge or both were improper or inequitable.  The Defense
Discharge Review Standards specifically state that no factors should be
established that require automatic change or denial of a change in
discharge.

5.  The applicant's administrative separation was accomplished in
compliance with applicable regulation with no indication of procedural
errors that would tend to jeopardize his rights.

6.  In the absence of evidence to the contrary, it is determined that all
requirements of law and regulations were met and the rights of the
applicant were fully protected throughout the separation process.

7.  The applicant request that his discharge be upgraded to an honorable
discharge.  However, his records show that he was convicted by a summary
court-martial, received one Article 15, and had 321 days of lost time due
to AWOL during his military service.  Based on these facts, the applicant’s
service clearly did not meet the standards of acceptable conduct and
performance of duty for Army personnel that are required for issuance of an
honorable discharge.

8.  Based on the applicant’s multiple offenses, his record of service did
not meet the regulatory standard of satisfactory service.  In the absence
of a record of satisfactory service, the applicant is not entitled to a
general discharge.

9.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 19 June 1981.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 18 June 1984.  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

__MDM___  _KAH___  _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.





                __Mark D. Manning___
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004104131                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |                                        |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0400.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]