RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         23 August 2005
      DOCKET NUMBER:  AR20050000504


      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. Betty A. Snow                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. William D. Powers             |     |Member               |
|     |Ms. Marla J. N. Troup             |     |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, he served his country honorably in the
Republic of Vietnam (RVN) and was discharged honorably at the time of his
reenlistment.

3.  The applicant provides a copy of his separation document (DD Form 214)
in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 29 November 1973.  The application submitted in this case
is dated
10 December 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.  The applicant’s record shows he enlisted in the Army and entered active
duty on 27 October 1971.  He was trained in, awarded and served in military
occupational specialty (MOS) 11C10 (Infantry Indirect Fire Crewman).

4.  On 20 October 1972, while serving in the RVN, he was honorably
discharged for the purpose of immediate reenlistment, and on 28 October
1972, he reenlisted for six years.

5.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he was
promoted to the rank of specialist four (SP4) on 12 July 1972, and this was
the highest rank he attained while serving on active duty.  It also shows
that he served in the RVN from 5 May 1972 through sometime in December
1972.  It further shows he earned the National Defense Service Medal and
Vietnam Service Medal during his active duty tenure.

6.  The applicant’s record reveals a disciplinary history that includes his
acceptance of a nonjudicial punishment (NJP) under the provision of Article
15 of the Uniform Code of Military Justice (UCMJ) on 25 July 1972, for
sleeping on guard duty in the RVN.

7.  On 26 October 1973, 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 absent without leave (AWOL) from on or
about 11 January 1973 through on or about 23 October 1973.

8.  On 26 October 1973, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
maximum permissible punishment authorized under the UCMJ, the possible
effects of an UD, and of the procedures and rights that were available to
him.  Subsequent to receiving this legal counsel, the applicant voluntarily
requested discharge for the good of the service, in lieu of trial by court-
martial.

9.  On 30 May 1973, the applicant submitted a statement in support of his
request for discharge.  In this statement, he indicated that he no longer
wanted to participate in military service and that he would go AWOL again.
The applicant also stated that he understood he would lose all military
benefits as a result of an UD.

10.  On 30 October 1973, the separation authority approved the applicant’s
request for discharge and directed that he receive an UD.  On 29 November
1973, the applicant was discharged accordingly.  The DD 214 he was issued
at the time confirms he completed a total of 1 year, 3 months and 19 days
of creditable active duty service and had accrued 284 days of time lost due
to AWOL.

11.  On 20 January 1976 and 15 May 1981, the Army Discharge Review Board
(ADRB), after carefully considering the applicant’s case, determined his
discharge was proper and equitable, and it denied his request for an
upgrade of his discharge.

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 an undesirable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his honorable RVN service should
support an upgrade of his discharge was carefully considered.  However,
this factor is not sufficiently mitigating to warrant an upgrade of his
discharge at this late date.

2.  The evidence of record confirms 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.  All
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout the separation process.

3.  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.

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 20 January 1976 and
15 May 1981.  As a result, the time for him to file a request for
correction of any error or injustice to this board expired on 14 May 1984.
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 file in this case.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__KAN   _  ___WDP_  __MJNT    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.




                                  ____Kathleen A. Newman __
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040006455                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005/08/23                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |29 November 1973                        |
|DISCHARGE AUTHORITY     |AR 645-200, Ch 10 . . . . .             |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0200.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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