RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           21 December 2004
      DOCKET NUMBER:  AR2004105790


      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. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Ms. Semma E. Salter               |     |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, reconsideration of his request for
an upgrade of his undesirable discharge (UD).

2.  The applicant states, in effect, that he does not know why the
documentary evidence he provided with his original application did not
arrive with his original application.  He claims that he was represented by
the American Legion and is now providing all the documents he submitted
with his original application.  He states that the Record of Proceedings
and denial letter he received indicated neither he nor counsel was present
at the hearing, but it was his understanding that a representative from the
American Legion would be at the hearing to represent him.  The applicant
further outlines his disagreement with other statements contained in the
Board’s original decisional document regarding the failure to timely file,
given he was not aware of the statute of limitations.

3.  The applicant further states that his original application indicated
that he was willing to appear before the Board and that he expected a
representative from the American Legion to provide input to the
application.  He further comments that he has a disability and is living on
a Social Security benefit of around $600.00 per month and his wife does not
work.  He states that he was advised to apply for Department of Veterans
Affairs (VA) health benefits and received benefits based on his first three
years of service.  However, he was found ineligible for benefits for his
service from 14 November 1970 through 16 November 1972.

4.  The applicant further states that while he was a young Soldier, his
wife grew unhappy with him being away from home and wanted him home with
her and their child.  As a result, he went absent without leave (AWOL) to
talk to her and work things out.  He claims that one of the times he was
AWOL, his wife told him to get out of the service or get a divorce.
Subsequent to this conversation, when he was returned to military control,
he requested discharge.  He claims he believed he could save his marriage
and family by being discharged and was willing to accept any separation the
Army offered.

5.  In support of his application, the applicant provides 40 pages of
documents included in the 17 enclosures listed on the “Listed Documents
Sent to Army Review Board” page provided.
CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR2003096806, on 10 February 2004.

2.  During its original deliberations, the Board considered the applicant’s
entire military service record and concluded his discharge was proper and
equitable, and that his overall record of service was not sufficiently
meritorious to support an upgrade of his discharge.

3.  The applicant’s record confirms he originally enlisted in the Regular
Army and entered active duty on 14 November 1967.  He was trained in and
awarded military occupational specialty (MOS) 63C (Track Vehicle Repairer).


4.  On 21 September 1969, the applicant was honorably discharged for the
purpose of immediate reenlistment and on 22 September 1969, he reenlisted
for 6 years.

5.  The applicant completed overseas tours in Korea and the Republic of
Vietnam (RVN) and attained the rank of specialist five (SP5), the highest
rank he held while serving on active duty, on 18 March 1970.  During his
active duty tenure, he earned the National Defense Service Medal, Vietnam
Service Medal, RVN Campaign Medal with 60 Device, Sharpshooter
Qualification Badge with Rifle Bar (M-14) and Marksman Qualification Badge
with Rifle Bar (M-16).  There are no acts of valor, significant achievement
or service warranting special recognition documented in his record.

6.  The applicant’s disciplinary history for the enlistment under review
shows he accepted nonjudicial punishment (NJP) under the provisions of
Article 15 of the Uniform Code of Military Justice (UCMJ) on 16 December
1969, for being AWOL from on or about 2 through 6 December 1969.  On 26 May
1972, he was found guilty of violating Article 86 of the UCMJ, by being
AWOL from on or about
11 April through on or about 12 May 1972, by a summary court-martial.

7.  On 31 October 1972, a court-martial charge was preferred against the
applicant for violating Article 86 of the UCMJ by being AWOL from on or
about
19 June through on or about 19 October 1972.  On 31 October 1975, he
consulted counsel and after being advised of the basis for the contemplated
trial by court-martial, the maximum permissible punishment authorized under
the UCMJ, and the possible effects of an UD, he voluntarily requested
discharge for the good of the service, in lieu of trial by court-martial.
8.  On 13 November 1972, the separation authority approved the applicant’s
request for discharge and directed that he receive an UD and be reduced to
the lowest enlisted grade.  On 16 November 1972, the applicant was
discharged accordingly.  The DD Form 214 he was issued confirms he
completed a total of
2 years, 8 months and 20 days of creditably active military service and
accrued 157 days of time lost due to AWOL on the enlistment under review.

9.  The applicant provides 40 pages of documents in support of his current
application that attest to his post service conduct and his poor physical
condition. In these documents, he also argues that he was willing to appear
before the Board and believed that the American Legion, his counsel would
be present  at the Board hearing to represent him.

10.  Army Regulation 15-185 prescribes the policies and procedures for
correction of military records by the Secretary of the Army, acting through
the Army Board for Correction of Military Records (ABCMR).  Chapter 2
contains guidance on the conduct of the ABCMR.  It states, in pertinent
part, that applicants do not have a right to a hearing before the ABCMR.
The ABCMR panel may direct a hearing at its own discretion and/or the
Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  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.  Thus, a formal
hearing before the Board, at which the applicant and/or his counsel could
be present, is not necessary to satisfy the interest of justice in this
case.

2.  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.

3.  The applicant’s entire military record, his post service conduct and
the issues and independent evidence he provides were carefully considered.
However, none of these factors are sufficiently mitigating to warrant an
amendment of the original Board decision.

4.  The applicant’s discharge accurately reflects his record of service for
the enlistment under review.  Further, by his own admission, he is
receiving
VA benefits based on his first three years of service.  As a result, there
is an insufficient evidentiary basis to support granting the requested
relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___FE __  __SES __  __PMS__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 to amend the decision of the ABCMR set forth in
Docket Number AR2003096806, dated 10 February 2004.




            ____Fred Eichorn________
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004105790                            |
|SUFFIX                  |                                        |
|RECON                   |AR2003096806  2004/02/10                |
|DATE BOARDED            |2004/12/21                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1972/11/16                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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