RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            FEBRUARY 1, 2005
      DOCKET NUMBER:      AR2004107014


      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. Walter T. Morrison            |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. William D. Powers             |     |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 an honorable or a general discharge.

2.  The applicant states that he had a perfect record until he went absent
without leave (AWOL).  He stated that he was promoted to the pay grade of E-
5 because he worked hard even though he was not receiving any pay from the
day that he entered the Army in May 1972 until January 1973.  He states
that he received pay to travel from California to Texas and his wife and
children received an allotment of $245.00 per month.  He goes on to state
that he went to see the Inspector General, the Chaplain and the company
commander and nothing was resolved.  He states that he saved the Army a
countless amount of dollars by developing a screen to go on the generator
blower motors that kept the generator cool and also developing a wrench for
quick removal of the corps battle simulation system.  He states that he
sought help from various people in the military; however, he was unable to
get help.  He states that his mother died and he could not be with her and
that his wife moved to New York with another soldier and took his children
because he was getting paid on a regular basis.  He states that these
events created undue stress on him and caused him to go AWOL.  He states
that while he was AWOL, he got a job so that he could get the money
together to get his children back and that he turned himself in and was
advised by counsel to plead guilty.  He states that his counsel told him
that if he plead guilty he could get out of the Army quickly and that
everything would be alright; however, things did not work out that way.  He
concludes by requesting that this Board reconsider the findings in his
behalf.

3.  The applicant provides in support of his application two undated
letters from his sister and his brother verifying his contentions regarding
his family and pay problems.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 19 January 1976.  The application submitted in
this case is dated 6 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 limitations 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 30 May 1972, he enlisted in the Army in Lubbock, Texas, for 3 years,
in the pay grade of E-1, with basic combat training at Fort Ord,
California, and assignment to the 2nd Armored Division, Fort Hood, Texas.
He successfully completed his training as a track vehicle mechanic.

4.  The applicant was advanced to the pay grade of E-2 on 2 August 1972,
and he was assigned to the 2nd Armored Division, Fort Hood, Texas, on 24
August 1972.  He was advanced to the pay grade of E-3 on 7 June 1973 and to
the pay grade of E-4 on 13 November 1973.

5.  After completing 2 years, 4 months and 29 days of total active service,
he reenlisted in the Army for 5 years on 29 October 1974, for Continental
United States station of choice (Fort Hood, Texas).  He was promoted to the
pay grade of E-5 on 4 May 1975.

6.  The available records show that the applicant went AWOL on 31 July 1975
and he remained absent in desertion until he surrendered to military
authorities on 16 December 1975.  At the time of his surrender, he
indicated that the reason that he went AWOL was because his wife had
deserted him and their children.

7.  On 27 August 1975, while he was AWOL, the applicant’s commanding
officer forwarded a memorandum through his chain of command indicating that
he had been AWOL since 31 July 1975 and that he never expressed any
difficulties which may have involved domestic strife, indebtness, or
trouble with his superiors.

8.  Although his charge sheet is unavailable for review by the Board, the
available records show that the applicant was notified that charges were
pending against him for being AWOL.  On 23 December 1975, after consulting
with counsel, he submitted a request for discharge under the provisions of
Army Regulation 635-200, chapter 10, for the good of the service, in lieu
of trial by court-martial.  At the time that he submitted his request for
discharge, he acknowledged that he had been advised and understood the
effects of an undesirable discharge and that he would be deprived of any
and all Army benefits; that he may be ineligible for many or all benefits
administered by the Veterans’ Administration; and that he may be deprived
of his rights and benefits
as a veteran under both Federal and State Law.  He also acknowledged that
he understood that he might encounter substantial prejudice in civilian
life as a result of receiving an undesirable discharge.

9.  The appropriate authority approved the request for discharge on 7
January 1976.  Accordingly, on 19 January 1976, the applicant was
discharged 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 3 years, 3 months and 4 days of total active service and the had
approximately 138 days of lost time due to AWOL.  He was furnished an
Undesirable Discharge Certificate.

10.  A review of the available records fails to show that the applicant
ever applied to the Army Discharge Review Board for an upgrade of his
discharge within that board’s 15-year statute of limitations.

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 undesirable discharge.

DISCUSSION AND CONCLUSIONS:

1.  It appears that the applicant's administrative separation was
accomplished in compliance with applicable regulations with no indication
of procedural errors, which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore seem to be
appropriate considering all the facts of the case.

3.  The applicant’s contentions have been noted.  However, according to the
memorandum that his commanding officer submitted through his chain of
command, prior to his going AWOL the applicant never expressed any
difficulties, which may have involved domestic strife, indebtness, or
trouble with his superiors.  It was not until he surrendered to military
authorities that he indicated that he went AWOL because he had to take care
of his family as a result of his wife deserting him and his children and
there is no evidence in the available records that shows that he sought
help from his superiors prior to going AWOL.
4.  His contentions regarding his pay have also been noted.  However, the
applicant completed 2 years, 4 months and 29 days of a 3-year enlistment
and he opted to reenlist in the Army for an additional 5 years on 29
October 1974, which was over a year after he contends that his pay problems
ended.  Consideration has been given to the statements that he has
submitted in support of his application.  However, there is no evidence in
the available record to substantiate his contention that he was not being
properly paid while he was in the Army.

5.  The evidence of record clearly shows that the applicant had
approximately 138 days of lost time due to AWOL.  He submitted a request
for discharge in lieu of trial by court-martial and considering the nature
of his offense; it does not appear that his undesirable discharge is too
severe.

6.  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.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 19 January  1976; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 18 January 1979.  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

wtm_____  wdp ____  jtm _____  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.




                                  ____Walter T. Morrison__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004107014                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050201                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19760119                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |CHAPTER 10/FOR GOOD OF THE SERVICE      |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  651  |144.6300.0000/AWOL/DESERTION            |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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