RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           9 December 2004
      DOCKET NUMBER:  AR2004104796


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Linda D. Simmons              |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 upgraded.

2.  The applicant states, in effect, that because he was discharged during
the Vietnam era, his discharge should be upgrade.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 7 May 1971.  The application submitted in this case was
received on 4 March 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 applicant’s record shows that he initially enlisted in the Regular
Army and entered active duty on 25 May 1970.  He was trained in and awarded
military occupational specialty (MOS) 72B (Communications Center
Specialist) and the highest rank he attained while serving on active duty
was private first class (PFC).

4.  On 2 November 1970, Special Orders Number 252, issued by Headquarters,
United States Army Southeastern Signal School, Fort Gordon, Georgia,
directed the applicant’s reassignment to the Overseas Replacement Station,
Fort Dix, New Jersey, for movement to the Republic of Vietnam (RVN).  These
orders established his reporting date as 5 December 1970.

5.   On 21 December 1970, after failing to report to Fort Dix for movement
to the RVN, the applicant was placed in an absent without leave (AWOL)
status.  He remained AWOL for 113 days until being apprehended by civil
authorities and returned to military control on 13 April 1971.

6.  On 20 April 1973, a Charge Sheet (DD Form 458) was prepared preferring
a court-martial charge against the applicant for violating Article 86 of
the UCMJ by being AWOL from on or about21 December 1970 through on or about

13 April 1971.

7.  On 21 April 1971, applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
maximum permissible punishment authorized under the UCMJ, the possible
effects of an UD, and of the procedures and rights that were available to
him.  Subsequent to receiving this legal counsel, the applicant voluntarily
requested discharge for the good of the service, in lieu of trial by court-
martial.  In his request for discharge, the applicant indicated that he
understood that by requesting discharge, he would be deprived of many or
all Army benefits, that he could be ineligible for many or all benefits
administered by the Department of Veterans Affairs (VA), and that he could
be deprived of his rights and benefits as a veteran under both Federal and
State law.

8.  On 7 May 1971, the separation authority approved the applicant’s
request for discharge and directed that he receive an UD and that he be
reduced to the lowest enlisted grade and the applicant was discharged
accordingly.

9.  The DD Form 214 the applicant was issued on the date of his discharge,
7 May 1971, confirms that he completed a total of 7 months and 18 days of
creditable active military service and that he accrued 115 days of time
lost due to AWOL and confinement.

10.  On 10 November 1982, the Army Discharge Review Board (ADRB) determined
that the applicant’s discharge was proper and equitable and it voted to
deny the applicant’s request for an upgrade of his discharge.

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 UD.
12.  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 evidence of record confirms that the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, the applicant voluntarily
requested discharge from the Army in lieu of trial by court-martial.  The
record further confirms all requirements of law and regulation were met and
that the rights of the applicant were fully protected throughout the
separation process.  Further, the applicant’s discharge accurately reflects
his overall record of undistinguished service.

2.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, 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.

Records show the applicant exhausted his administrative remedies in this
case when his case was reviewed by the ADRB on 10 November 1982. As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 9 November 1985.  However, he 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

__MHM__  __LDS__  __JMF_ _  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.




            ____Melvin H. Meyer ____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004104796                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2004-12-09                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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