RECORD OF PROCEEDINGS


      IN THE CASE OF:

      BOARD DATE:           27 January 2005
      DOCKET NUMBER:  AR2004106713


      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. Raymond J. Wagner             |     |Chairperson          |
|     |Ms. Eloise C. Prendergast         |     |Member               |
|     |Ms. Brenda K. Koch                |     |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 to an honorable discharge (HD).

2.  The applicant states, in effect, that he could not leave his mother,
who was dying of cancer.  He states his mother died on 18 October 1971, two
weeks after his discharge.  He claims that he was also suffering from
depression due to the loss of his son, who died in October 1968, at six
months of age.

3.  The applicant provides a letter of support from his wife in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 1 October 1971.  The application submitted in this case is
dated
29 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 was inducted into the Army and
entered active duty on 2 April 1969.  He was trained in and awarded
military occupational specialty (MOS) 67A (Aircraft Maintenance Crewmember)
and the highest rank he attained while serving on active duty was private/E-
2 (PV2).

4.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.  Upon completion of
training, the applicant was placed on orders to the Overseas Replacement
Center, Fort Lewis, Washington for movement and ultimate assignment to the
Republic of Vietnam (RVN).
5.  On 25 September 1969, when he failed to report to Fort Lewis, the
applicant was declared absent without leave (AWOL).  He remained in that
status until returning to military control at Fort Knox, Kentucky on 6
December 1969.

6.  On 22 December 1969, the applicant applied for a hardship discharge
based on his need to be home to care for his pregnant wife.

7.  On 28 January 1970, a special court-martial found the applicant guilty
of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by
being AWOL from on or about 25 September through on or about 6 December
1969.  The resultant sentence included a reduction to private/E-1 (PV1), 60
days of hard labor without confinement and 60 days of restriction.

8.  On 5 March 1970, the Adjutant General of Fort Knox, Kentucky, denied
the applicant’s request for hardship discharge.  He found the evidence
submitted did not meet the criteria for hardship discharge and the
applicant’s situation had not been aggravated to such an extent as to
constitute undue and genuine hardship.

9.  On 12 March 1970, the applicant signed a memorandum for record
acknowledging that he had been informed of the decision on his hardship
discharge.  He also acknowledged that if the situation worsened subsequent
to the disapproval, he could reapply at a later date with new additional
justification.

10.  The applicant was again placed on orders to the RVN and on 18 March
1970, he was declared AWOL when he failed to report for movement to the
RVN. He remained away for 509 days until returning to military control on 8
August 1971.

11.  On 8 August 1971, 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 about 18 March 1970 through on or about 8
August 1971.

12.  On 15 September 1971, the applicant consulted with legal counsel and
was fully advised of the basis for the contemplated trial by court-martial
and its effects.  Subsequent to receiving this legal counsel, the applicant
voluntarily requested discharge for the good of the service, in lieu of
trial by court-martial.
13.  In his request for discharge, the applicant acknowledged he understood
that if his discharge request was approved, he could 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.  He further indicated that he understood that he could encounter
substantial prejudice in civilian life by reason of an UD.

14.  On 27 September 1971, the separation authority approved the
applicant’s request for discharge and directed that he receive an UD.  On 1
October 1971, the applicant was discharged accordingly.  The DD Form 214 he
was issued, as amended, confirms he completed a total of 4 months and 5
days of creditable active military service and that he accrued 584 days of
time lost due to AWOL and confinement.

15.  The applicant provides a letter of support from his wife.  In this
letter, his wife indicates the applicant was very depressed over the loss
of their infant son.  She also states that the applicant also found out his
mother suffered from cancer and as a result of the emotional stress he was
under, he decided he could not leave home.  She goes on to state the
applicant has lived a good life and worked for a plating company for 37
years and advanced to a supervisor position.  She further states the
applicant is a very good person and requests his discharge be upgraded to
honorable.

16.  There is no indication the applicant applied to the Army Discharge
Review Board for an upgrade of his discharge within its 15-year statute of
limitations.

17.  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.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he experienced family problems that
impaired his ability to serve and the supporting documents he provides were
carefully considered.  However, the factors presented are not sufficiently
mitigating to warrant granting the requested relief.

2.  The record shows Army officials properly evaluated the applicant’s
family situation when his hardship discharge request was considered.  These
officials determined that while his situation was unfortunate, it did not
rise to the level necessary to support a hardship discharge.

3.  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.

4.  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.  Finally, it is concluded that the applicant’s
discharge accurately reflects his overall record of short and
undistinguished service.

5.  The applicant’s post service conduct was also carefully considered.
However, while admirable, this factor alone does not provide a basis to
support upgrading his discharge at this late date.

6.  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.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 October 1971.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 30 September 1974.  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
timely file in this case.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___ECP_  __BKK __  __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                 |AR2004106713                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/01/27                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1971/10/01                              |
|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.                      |                                        |


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