RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            22 SEPTEMBER 2005
      DOCKET NUMBER:   AR20050000331


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Mr. Bernard Ingold                |     |Member               |
|     |Mr. Michael 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 his undesirable discharge be upgraded to a
more favorable discharge.

2.  The applicant states that he had a racial conflict with his commanding
officer and he needs his discharge upgraded so that he can go on with his
livelihood.

3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 6 January 1976.  The application submitted in this case is
dated 4 December 2004 and was received on 3 January 2005.

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.  He was born on 2 November 1945 and was inducted in Shreveport,
Louisiana, on 9 April 1969.  He completed his training at Fort Polk,
Louisiana, and was transferred to Fort Hood, Texas, on 17 September 1969.
He was advanced to the pay grade of E-3 on 23 October 1969 and to the pay
grade of  E-4 on 8 December 1969.

4.  On 16 March 1970, orders were published which directed the applicant’s
transfer to the Overseas Replacement Detachment at Oakland Army Base,
California, for movement to Vietnam on 28 April 1970.

5.  The applicant did not report as ordered and was reported as being
absent without leave (AWOL) until he was returned to military control at
Fort Leavenworth, Kansas on 30 April 1970.  Orders were published on 1 May
1970 transferring him to Oakland without delay.

6.  On 7 May 1970, orders were published at Oakland which revoked his
assignment to Vietnam and reassigned him to Fort Riley, Kansas on 15 May
1970, for duty as an artillery recorder.

7.  On 8 October 1970, nonjudicial punishment (NJP) was imposed against him
for being AWOL from 28 September to 6 October 1970.  His punishment
consisted of a reduction to the pay grade of E-3 and a forfeiture of pay
which was suspended for 60 days, and extra duty and restriction for 30
days.

8.  On 16 December 1970, NJP was imposed against him for failure to go to
his place of duty.  His punishment consisted of a reduction to the pay
grade of E-3, extra duty and restriction.

9.  On 16 February 1971, he was convicted by a summary court-martial of
being AWOL from 5 January until 2 February 1971.  He was sentenced to
perform hard labor for 45 days and to be reduced to the pay grade of E-1.

10.  The applicant departed on pass and did not return to duty.
Accordingly, he was reported as being AWOL on 27 April 1971 and remained
absent in a deserter status until he was apprehended by Federal Bureau of
Investigations officials in Dallas, Texas, on 20 November 1975.  He was
returned to military control at Fort Hood, Texas, where charges were
preferred against him for the AWOL offense.

11.  The facts and circumstances surrounding his administrative discharge
are not present in the available records.  However, his records do contain
a duly constituted report of separation (DD Form 214) which shows that he
was discharged under other than honorable conditions on 6 January 1976,
under the provisions of Army Regulation 635-200, chapter 10, in lieu of
trial by court-martial.  He had served 2 years and 1 month of total active
service and had 1,704 days of lost time due to AWOL.

12.  There is no evidence in the available records to show that he ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that board's 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge
for the good of the service in lieu of trial by court-martial.  A condition
of submitting such a request is that the individual concerned must indicate
that they are submitting the request of their own free will, without
coercion from anyone and that they have been briefed and understand the
consequences of such a request as well as the discharge they might receive.
 A discharge under other than honorable conditions is normally considered
appropriate.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that
the applicant's voluntary request for separation under the provisions of
Army Regulation 635-200, chapter 10, for the good of the service to avoid
trial by court-martial, was administratively correct and in conformance
with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a
trial by court-martial, he voluntarily requested a discharge for the good
of the service in hopes of avoiding a punitive discharge and having a
felony conviction on his records.

4.  The applicant's contentions and his overall record of service have been
considered.  However, they are not sufficiently mitigating to warrant
relief when compared to his undistinguished record of service and his
extensive unauthorized absence during such a short period of time.  His
service simply does not rise to the level of a general discharge.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 January 1976; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 5 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

____JA__  ___BI ___  ___MF __  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 Anderholm_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050000331                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050922                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1976/01/06                              |
|DISCHARGE AUTHORITY     |AR635-200/CH10 . . . . .                |
|DISCHARGE REASON        |GD OF SVC                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |689/A70.00                              |
|1.144.7000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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