RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        DECEMBER 21, 2004
      DOCKET NUMBER:  AR2004105892


      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. 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, that his undesirable discharge be
upgraded to a general discharge.

2.  The applicant states that he should have been discharged through
medical channels because he could not cope with the stress of being in
Vietnam.  He states that all of his medical records were removed when he
returned to the United States during his first period of enlistment.  He
states that he reenlisted and that he was returned to Vietnam when others
went to Canada and were later granted amnesty.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice, which
occurred on 28 April 1970.  The application submitted in this case is dated
11 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.  On 1 June 1964, he enlisted in the Army in Cleveland, Ohio, for 3 years
in the pay grade of E-1.  He successfully completed his training as a
pioneer.  He was promoted to the pay grade of E-2 on 29 September 1964 and
to the pay grade of E-3 on 1 February 1965.

4.  On 12 September 1966, he was transferred to the Republic of Vietnam
where he remained for 1 year, 8 months and 11 days.  He returned to the
Continental United States on 24 May 1967.

5.  He was honorably released from active duty on 26 May 1967, as an
overseas returnee and he was transferred to the United States Army Reserve
Control Group (Reinforcement) to complete his reserve obligation.  He had
completed 2 years, 11 months and 26 days of total active service.

6.  He reenlisted in the Army, in Cleveland, Ohio, for an additional 3
years on 8 December 1967.  He was transferred to the Republic of Vietnam on
19 July 1968.  He returned to the Continental United States on 18 July
1969.

7.  The applicant went absent without leave (AWOL) on 2 October 1969 and he
remained absent until he was apprehended by civil authorities; returned to
military control on 13 April 1970; and placed in pretrial confinement.  At
the time of his return to military control, he was asked why he went AWOL
and he stated that he “could not take the Army”.

8.  The facts and circumstances pertaining to the applicant's discharge are
not on file.  The Report of Transfer or Discharge, DD Form 214, indicates
that the applicant was discharged on 28 April 1970, 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 4 years, 10 months and 3 days
of total active service and he had approximately 194 days of lost time due
to AWOL and confinement.  He was issued an Undesirable Discharge
Certificate.

9.  A review of the available records fail to show that the applicant was
suffering from any mental or physical problems while he was in the Army
that would have warranted his being process out through medical channels.

10.  On 30 June 1982, the Army Discharge Review Board denied the
applicant’s request for an upgrade of his discharge.

DISCUSSION AND CONCLUSIONS:

1.  It appears that the type of discharge directed and the reasons
therefore were appropriate considering all the facts of the case.

2.  Although the facts and circumstances surrounding the applicant’s
discharge are unavailable for review, the evidence of record shows that he
went AWOL and that he remained absent for approximately 194 days prior to
being apprehended by civil authorities.

3.  The fact that he believed that he “could not take the Army” was and
still is not a sufficient justification for going AWOL and there is no
evidence in the available records to substantiate his contention that he
should have been separated from the Army through medical channels.

4.  In the absence of evidence to the contrary, it is presumed that the
discharge proceedings were conducted in accordance with law and regulations
applicable at the time.  The character of his discharge appears to be
commensurate with his overall record of service.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 June 1982; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 29 June 1985.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

fe______  ses _____  pms_____  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.



                                  _____Fred Eichorn___
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004105892                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041221                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19700428                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |CHAPTER 10                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  689  |144.7000.0000/FTGS IN LIEU OF CM        |
|2.  651.                |144.6300.0000/PROLONGED AWOL            |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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