RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          3 March 2005
      DOCKET NUMBER:  AR2004106906


      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. Rosa M. Chandler              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Ms. Margaret K. Patterson         |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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 undesirable discharge (UD) be upgraded
to a general discharge under honorable conditions or to a fully honorable
discharge.

2.  The applicant states, in effect, that he left his unit in an absent
without leave (AWOL) status to be with his wife during the birth of their
child.  He returned to the Army when his wife and child were out of danger
and volunteered to go to Vietnam.  He completed his full tour of duty in
Vietnam and he was awarded the Purple Heart (PH), Vietnam Campaign Medal,
Vietnam Service Medal, and the Combat Infantryman Badge.

3.  The applicant provides:

      a.  DD Form 214 (Armed Forces of the United States Report of Transfer
or Discharge), issued on 11 May 1971.


      b.  Request for Veterans Benefits submitted to the Pike County
Veterans Service Office, Waverly, Ohio.


      c.  Personal reference letter written by an attorney in Waverly, Ohio,
dated 16 March 2004, which states that he has known the applicant for 10
years and he is trustworthy, hardworking and responsible; he has a good
reputation in his community; and he believes he deserves an honorable
discharge.


      d.  Personal reference letters written by the Executive Director, and
the Commissioner, Pike County Veterans Service Office, both letters are
dated
16 March 2004.  Both letters state that the applicant is a good husband and
father.  He is dependable, honest, patriotic, and he is respected by local
veterans organizations and in his community.  The applicant's recent health
conditions and the high cost of healthcare have made it difficult and an
upgrade of his discharge may assist him in obtaining veterans
administration (VA) medical benefits.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged error or injustice
which occurred on 11 May 1971.  The application submitted in this case is
date stamped 13 April 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 28 May 1968, the applicant was inducted into the Army of the United
States.  He completed the training requirements and he was awarded military
occupational specialty (MOS) 11D (Army Intelligence Specialist).

4.  On 19 October 1968, the applicant left his unit at Fort Knox, Kentucky
on casual leave enroute to Vietnam.  On 12 November 1968, he failed to
report and he went into an AWOL status until he returned to military
control at the Special Processing Company (SPC), Fort Knox, on 23 January
1969.

5.  On 17 February 1969, the applicant was convicted by a special court-
martial of the above AWOL offense.  He was sentenced to reduction from pay
grade
E-2 to pay grade E-1; a forfeiture of $73.00 pay per month for 3 months,
and to be confined at hard labor for 3 months (suspended for 3 months).

6.  On 3 April 1969, the applicant was assigned to Vietnam and on 23 May
1969, he was wounded in action.  He received a fragment wound to his back.
He was treated and returned to duty.  On 24 March 1970, he returned to the
United States and was assigned to Fort Sill, Oklahoma.

7.  On 30 April 1970, he left Fort Sill in an AWOL status until he returned
to military control at the SPC, Fort Knox on 4 November 1970.  He was AWOL
from the SPC from 25-30 November 1970, from 3 January to 2 February 1971,
and from 15-21 February 1971.

8.  On 19 March 1971, the applicant underwent a psychiatric examination and
he was determined to meet psychiatric retention standards.  He was mentally
responsible; able to distinguish right from wrong and adhere to the right;
and he had the mental capacity to understand and participate in board
proceedings.  He was psychiatrically cleared for any administrative action
deemed appropriate by his chain of command.

9.  On 24 March 1971, the applicant underwent a medical examination that
also determined he was qualified for separation.  On 11 May 1971, the
applicant authenticated a statement of medical condition in which he
indicated he underwent a separation medical examination more than 3
working days prior to departure from his place of separation and that
there had been no change in his medical condition.


10.  The applicant's record does not contain all of the facts and
circumstances surrounding the discharge process.  However, his record does
contain a properly constituted DD Form 214 that was prepared at the time of
separation and authenticated by him.  The applicant's DD Form 214 shows
that on 11 May 1971, he was separated for the good of the service-in lieu
of trial by court-martial, under the provisions of chapter 10, Army
Regulation 635-200, in pay grade E1 with a UD.  He had completed 1 year, 10
months and 29 days of active military service. He also had 163 days of lost
time prior to normal expiration term of service (ETS) and 218 days of lost
time subsequent to normal ETS, due to being AWOL and in military
confinement.

11.  There is no evidence that the applicant ever applied to the Army
Discharge Review Board for review of his discharge under that board's 15-
year statute of limitation or under the Department of Defense (DOD)
Discharge Review Program (Special) (SDRP).

12.  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 a UD.

13.  On 4 April 1977, the DOD directed the Services to review all less than
fully honorable administrative discharges issued between 4 August 1964 and
28 March 1973.  This program, known as the DOD Discharge Review Program
(Special) (SDRP), required, in the absence of compelling reasons to the
contrary, that a discharge upgrade to either honorable or general be issued
in the case of any individual who had either completed a normal tour of
duty in Southeast Asia, been wounded in action, been awarded a military
decoration other than a service medal, had received an honorable discharge
from a previous period of service, or had a record of satisfactory military
service of 24 months prior to discharge.  Consideration of other factors,
including possible personal problems which may have contributed to the acts
which led to the discharge, and a record of good citizenship since the time
of discharge, would also be considered upon application by the individual.

14.  In October 1978, Public Law 95-126 was enacted.  This legislation
denied Veterans Administration (VA) benefits to any former service member
who had been AWOL for more than 180 consecutive days, or who had been
classified as a deserter or a conscientious objector.  The DOD was required
to establish historically consistent, uniform standards for discharge
reviews.  Reconsideration using these uniform standards was required for
all discharges previously upgraded under the SDRP and certain other
programs were required.  Individuals whose SDRP upgrades were not affirmed
upon review under these historically consistent uniform standards were not
entitled to VA benefits, unless they had been entitled to such benefits
before their SDRP review.

DISCUSSION AND CONCLUSIONS:

1.  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 discharge was commensurate with
his overall record.

2.  The applicant completed 10 months of honorable service in Vietnam
during which he was wounded in action and received the Purple Heart.  He
failed to request an upgrade of his discharge under the SDRP; however, had
he done so, his Vietnam service and Purple Heart are mitigating factors and
may have qualified him for relief under the SDRP.

3.  The applicant’s conduct was inconsistent with the Army’s standards for
acceptable personal conduct and his overall quality of service was not so
meritorious as to warrant a fully honorable discharge.  Based on the SDRP,
the UD is inequitable; and should be upgraded to a GD.  Given the number of
days of lost time incurred by the applicant, it is unlikely that the
discharge would have been affirmed under uniform standards.  Therefore, he
would not be entitled to VA benefits.

4.  Entitlement to veteran’s benefits is not a matter under the purview of
this Board, but rests with the Department of Veteran Affairs.  Further, the
lack of entitlements does not provide a basis upon which to grant an
upgrade of a discharge, or to affirm an upgraded discharge.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 11 May 1971; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
10 May 1974.  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 RELIEF

__fe____  __mkp___  __cak___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief and to excuse failure to timely
file.  As a result, the Board recommends that all Department of the Army
records of the individual concerned be corrected by:

      a.  Voiding the 11 May 1971, UD, currently held by the individual
concerned; and


      b.  Issuing him a GD under honorable conditions of the same date.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
a fully honorable discharge.



                 Fred Eichorn
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004106906                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050303                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |19710505                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 10                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(GRANT)                                 |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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