RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 September 2005
      DOCKET NUMBER:  AR20050000095


      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. James E. Anderholm            |     |Chairperson          |
|     |Mr. Bernard P. Ingold             |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 the undesirable discharge (UD) that he
received from the Regular Army (RA) be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he was separated from the RA with
a UD.  He enlisted in the United States Army Reserve (USAR), experienced
some health problems and after 1 year, he was separated with a General
Discharge (GD).  Numerous family members served in the military during
wartime.  His father served in the Korean War and received the Bronze Star
Medal and two of his brothers served in Vietnam.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 17 August 1970.  The application submitted in this case is
dated 4 November 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 July 1968, the applicant enlisted in the RA for a period of 2
years.  He completed the training requirements and was awarded military
occupational specialty (MOS) 76A (Supply Clerk).

4.  On 28 July 1969, the applicant was convicted by a special court-martial
of being absent without leave (AWOL) from his unit at Fort Ord, California
on two occasions:  on 4 March 1969 and from 2 April to 10 May 1969.  He was
also convicted of being AWOL from the Special Processing Detachment (SPD),
Fort Devens, Massachusetts from 26-27 May 1969 and from 22 June to 6 July
1969.  He was sentenced to a forfeiture of $82.00 pay per month for 2
months, and to be confined at hard labor for 2 months.  On 15 August 1969,
that portion of the sentence that provided for confinement at hard labor in
excess of 30 days was suspended until 28 September 1969.  Therefore, he
remained in confinement
from 7 July to 21 August 1969 until he returned to duty at the SPD.
5.  On 7 September 1969, he was assigned to Fort Dix, New Jersey.  He left
his unit in an AWOL status from 21-22 September 1969 and from 4 October
1969 to 9 July 1970 until he returned to military control at the SPD, Fort
Campbell, Kentucky.

6.  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 the applicant.  The DD Form 214 shows that,
on 17 August 1970, he was separated for the good of the service, under the
provisions of chapter 10, Army Regulation 635-200, in pay grade E1 with a
UD.  He had completed 11 months and 28 days of active military service and
he had 385 days of lost time, due to being AWOL and in military
confinement.

7.  Special Orders Number 224, Headquarters United States Army Training
Center, Fort Campbell, dated 13 August 1970, also shows effective that
date, the applicant was separated with a UD, for the good of the service.

8.  On 23 October 1976, the applicant enlisted in the USAR (Ready) for a
period of 1 year.  The available evidence shows he accumulated 8 unexcused
absences, and he was honorably separated on 22 October 1977.

9.  The available evidence does not show the applicant has ever applied to
the Army Discharge Review Board (ADRB) for an upgrade of his discharge
within the ADRB's 15-year statute of limitation.

10.  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.
At the time of the applicant's separation, a UD was appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The available records show the applicant was discharged under the
provisions of chapter 10, Army Regulation 635-200.  Although the facts and
circumstances surrounding the discharge process are missing, he would have
been charged with the commission of an offense(s) punishable under the UCMJ
with a punitive discharge.  He would have consulted with defense counsel
and signed a statement indicating that he had been informed he could
receive a UD and the ramifications of receiving such a discharge.  He would
have voluntarily requested discharge to avoid trial by court-martial.  In
doing so, he would have admitted guilt to the stipulated offense(s) under
the UCMJ.  The Board presumes administrative regularity and the applicant
has provided no information that would indicate the contrary.

2.  The applicant's family member's military history is commendable;
however, it does not establish a basis for the upgrade of his discharge.

3.  The available evidence shows that on 22 October 1977, the applicant was
honorably separated from the USAR (Ready).  He did not receive a GD, as he
previously indicated.

4.  Records show the applicant should have discovered the alleged error now
under consideration on 17 August 1970, therefore, the time for the
applicant to file a request for correction of any error or injustice
expired on 16 August 1973.  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

__jea___  __bpi___  __mjf___  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.



                                        James E. Anderholm
                                  ______________________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050000095                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050922                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |19700817                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 10                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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