RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 September 2005
      DOCKET NUMBER:  AR20050000629


      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. Joyce A. Wright               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Bernard P. Ingold             |     |Member               |
|     |Mr. Michael J. Flynn              |     |Member               |

      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 (GD) under honorable conditions.

2.  The applicant states that he was informed that his UD would be under
honorable conditions upon his released from the service and that he was
experiencing family problems while serving on active duty (AD).

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or
Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an injustice which occurred
on 23 December 1971, the date of his discharge.  The application submitted
in this case is dated 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 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 military records show he entered AD on 25 May 1967, as
a stock accounting specialist (76P), for a period of 3 years with an
established expiration of term of service (ETS) of 24 May 1970.  He served
in Vietnam from 22 March to 4 July 1968.  He was promoted to pay grade E-4
(T [temporary] on 10 May 1968.  He continued to serve until he was
honorably discharged on 25 May 1969, for the purpose of reenlistment.

4.  The applicant reenlisted on 26 May 1969 for a period of 6 years with an
established ETS date of 25 May 1975.  He was entitled to a variable
reenlistment bonus (VRB).  He served in Okinawa from 4 August 1969 to
31 August 1970.  He was promoted to pay specialist five (SP5/E-5) on
28 February 1970.

5.  The applicant received a VRB payment in the amount of $1, 421.00
sometime after his reenlistment.

6.  On 3 December 1970, the applicant requested a lump sum payment in the
amount of $2,872.00.  His commander recommended approval to the Chief,
Military Personnel Division, on the same day, and indicated that the Army
was entitled to recoupment of all unearned portions of the VRB should the
applicant be separated prior to his ETS.  The assistant adjutant approved
the request on   7 December 1970.

7.  Charges were preferred against the applicant on 18 November 1971, for
being absent without leave (AWOL) from 22 February to 4 June 1971 and from
23 June to 17 November 1971.

8.  The applicant was barred from reenlistment on 1 December 1971.

9.  Item 44 (Time Lost), of his DA Form 20 (Enlisted Qualification Record),
shows that he was AWOL from 22 February to 22 March 1971 (30 days), from
23 March to 3 June 1971 (72 days), and from 23 June to 21 December 1971.

10.  All the documents containing the facts and circumstances pertaining to
the applicant's discharge are not present in the available records.
However, his records contain a copy of a 3rd Indorsement to his discharge
proceedings, dated 21 December 1971.  This indorsement shows that the
appropriate authority approved the applicant's 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.  He directed that the applicant
be reduced to the pay grade of E-1 and that he be furnished an undesirable
discharge.

11.  The applicant was discharged on 23 December 1971 in the pay grade of
 E-1.  He had a total of 3 years, 9 months, and 15 days of creditable
service during this enlistment and had 285 days of lost time due to AWOL.

12.  The applicant applied to the Army Discharge Review Board (ADRB) for an
upgrade of his discharge on 8 May 1978.  The ADRB voted unanimously to deny
relief because the applicant requested discharge in lieu of trial by court-
martial for two periods of AWOL.  The ADRB also considered that in June
1971, while the applicant was in an AWOL status, he was convicted in a
civil court for grand larceny and received a 2-year suspended sentence.
The ADRB noted that three weeks after his return to military control, he
again departed AWOL.  He made no statement at the time of his separation
but had previously indicated to his commander that he had family and
financial problems.  Finally, ADRB noted that the applicant received a lump
sum payment for a 6-year reenlistment bonus in the amount of $4,293.00 in
December 1970.


13.  The ADRB considered the applicant's entire record, including one prior
period of honorable service and his family problems but found that they did
not serve to mitigate the seriousness of the offenses leading to his
separation. Therefore, the ADRB determined that a recharacterization of his
service was not warranted.  The ADRB determined that his discharge was
proper and equitable and denied his request on 11 June 1979.

14.  Army Regulation 635-200 sets forth the basic authority for 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.

15.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.

16.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (Army Regulation 15-185,
paragraph 2-8), effectively shortens that
filing period, has determined that the 3-year limit on filing to the ABCMR
should commence on the date of final action by the ADRB.  In complying with
this decision, the ABCMR has adopted the broader policy of calculating the
3-year time limit from the date of exhaustion in any case where a lower
level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  Since all documents pertaining to the applicant's discharge are not on
file in his service record, in the absence of evidence to the contrary, it
must be presumed that the applicant’s administrative separation was
accomplished in compliance with applicable regulations with no procedural
errors, which would tend to jeopardize his rights.

2.  The type of separation directed and the reasons for that separation
appear to have been appropriate, considering that the 3rd Indorsement was
signed by the approving authority and all the available facts of the case.

3.  The applicant alleges that he was informed that his UD would be under
honorable condition (GD) upon his release from AD; however, there is no
evidence in the applicant's records, and the applicant has provided none,
to support his allegation.

4.  The ADRB proceedings indicated that the applicant reported to his
commander that he had family and financial problems.  It is noted that he
received a lump sum payment for a 6-year reenlistment bonus in the amount
of $4,293.00 in December 1970, prior to departing on his first AWOL.

5.  It is presumed that the applicant's reenlistment bonus provided some
support toward his family and financial problems because he remained AWOL
for 30 days.  The applicant allegedly informed his commander of his family
and financial problems but there is no evidence that he availed himself of
those agencies that could have provided him the necessary assistance to
address his problems.  Instead, the applicant resorted to AWOL which only
compounded his problems.

6.  The ADRB considered the applicant's entire record, including his one
prior period of honorable service, and his family problems.  However, the
ADRB found that they did not serve to mitigate the seriousness of the
offenses leading to his separation.  The ADRB determined that a
recharacterization of his service was not warranted, that his discharge was
proper and equitable, and denied his request for an upgrade.

7.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 11 June 1979.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 10 June 1982.  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 file in this case.








BOARD VOTE:

__JA____  ____BI__  __MF___   GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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                 |AR20050000629                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050922                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19711223                                |
|DISCHARGE AUTHORITY     |AR .635-200                             |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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