RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 August 2005
      DOCKET NUMBER:  AR20050001538


      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. John J. Wendland, Jr.         |     |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 discharge under conditions
other than honorable be upgraded.

2.  The applicant states, in effect, that he served his country to the best
of his capacity, but was forced to accept an undesirable discharge without
benefit of counsel.

3.  The applicant concludes, in effect, that he suffers from a number of
illnesses that are the result of his military service and that he has no
(medical) benefits.

4.  The applicant provides copies of his two DD Forms 214 (Armed Forces of
the United States Report of Transfer or Discharge) and 23 pages of medical
documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 29 June 1973, the date of his discharge from active duty.  The
application submitted in this case is dated 18 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.  The applicant’s records show that he enlisted on 30 November 1968.  He
completed basic combat training and advanced individual training and was
awarded military occupational specialty 67Y (AH-16 Helicopter Repairman).

4.  The applicant’s records show that he served 26 months in the Republic
of Vietnam (RVN), from 18 July 1969 through 21 September 1971.  He was
awarded an Army Commendation Medal for meritorious achievement for the
period 1 August to 31 December 1969.  The applicant was discharged under
honorable conditions and issued a DD Form 214, on 15 May 1971, after
serving 02 years, 05 months, and 16 days of honorable service.

5.  On 16 May 1971, the applicant immediately reenlisted in the U.S. Army,
for 6 years.

6.  On 17 September 1971, the applicant accepted nonjudicial punishment for
the possession of six plastic vials suspected of being heroin.  His imposed
punishment was reduction to the pay grade E-4.

7.  A DA Form 3545 (Deserter Wanted by the Armed Forces), dated 23 February
1972, shows the applicant went absent without leave (AWOL) on 20 December
1971 and was subsequently dropped from the rolls on 22 February 1972.

8.  Headquarters, 82nd Airborne Division, Special Orders Number 46, dated
3 March 1972, shows the applicant was returned to military control on
25 February 1972.

9.  On 21 March 1972, the applicant accepted nonjudicial punishment for
being AWOL from 20 December 1971 until 25 February 1972; for failing to
report to his appointed place of duty on four separate occasions; and
failure to obey a lawful order.  His imposed punishment was reduction to
the rank of specialist four/pay grade E-4.

10.  On 7 August 1972, the applicant accepted nonjudicial punishment for
failing to report to his appointed place of duty.  His imposed punishment
was 14 days extra duty and seven days restriction to the barracks.

11.  A DA Form 3545, dated 12 September 1972, shows the applicant went AWOL
on 8 September 1972 and was dropped from the rolls on
12 September 1972.

12.  A DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized
Absence) shows the applicant surrendered to military authorities on
1 October 1972.

13.  On 14 November 1972, the applicant was convicted by a special court-
martial of failing to report to his appointed place of duty and being AWOL
for the period of 1 September 1972 through 1 October 1972.  His punishment
was reduction to the rank of private/pay grade E-1, forfeiture of $50.00
pay per month for 6 months, 45 days extra duty, and 45 days restriction.

14.  On 17 November 1972, the applicant accepted nonjudicial for twice
failing to report to his appointed place of duty at the prescribed dates
and times.  His punishment was 30 days restriction and 30 days extra duty.
15.  A DA Form 3835 (Notice of Unauthorized Absence from United States
Army), dated 20 November 1972, shows the applicant was reported AWOL from
his unit, effective 17 November 1972.

16.  A DA Form 188 (Extract Copy of Morning Report), dated 20 November
1972, shows the applicant’s duty status as AWOL, beginning 17 November
1972, and that he was dropped from the rolls of the organization on 17
November 1972.

17.  A Federal Bureau of Investigation letter, dated 29 May 1973, shows
that the applicant was apprehended by civilian authorities, returned to
military control, and confined at the Armed Forces Police Detachment,
Washington Navy Yard, Washington, DC.  The record indicates the applicant
stated that he would desert from the U.S. Army again, if the opportunity
presents itself.

18.  On 29 May 1973, the applicant was transferred and confined at the Post
Stockade, Fort George G. Meade, Maryland.

19.  The applicant's records contain a SF 88 (Report of Medical
Examination) and a SF 93 (Report of Medical History), both dated 30 May
1973.  These documents show the applicant's medical condition at the time
of his separation physical examination.  Item 74 (Summary of Defects and
Diagnosis) of the applicant's SF 88 contains the entry "none", and Item 77
(Examinee) contains the entry "is qualified for separation".  In addition,
in Item 8 (Statement of Examinee’s Present Health and Medications Currently
Used) of the applicant's SF 93, the applicant indicated in his own hand,
"Good" and "None", affirming that he was in good health at the time of his
separation from military service.

20.  The applicant’s records contain a DD Form 458 (Charge Sheet) which
shows that, on 5 June 1973, the captain in command of Company B, U.S. Army
Personnel Confinement Facility, Fort George G. Meade, preferred charges
against the applicant for being AWOL from 17 November 1972 until 29 May
1973.  This form further shows that the applicant was informed of the
charges against him and that the charges were received by the summary court-
martial convening authority on 5 June 1973.

21.  The applicant’s records show that, on 14 June 1973, he consulted with
counsel.  On 18 June 1973, the applicant requested a discharge for the good
of the service in lieu of trial by court-martial under the provisions of
chapter 10 of Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations).  His counsel also certified that he had advised the applicant
of the basis for the contemplated trial by court-martial under
circumstances which could lead to a bad conduct or dishonorable discharge,
of the effects of the request for discharge, and the rights available to
the applicant.

22.  The applicant signed his request for discharge which showed that he
was making the request under his own free will and acknowledged guilt to
the offenses charged; that he was afforded the opportunity to speak with
counsel; that he was advised he may be furnished an Undesirable Discharge
Certificate; that he may be deprived of many or all Army benefits; that he
may be ineligible for many or all Veterans Administration benefits; that he
may be deprived of his rights and benefits as a veteran under both Federal
and State law; and that he may expect to encounter substantial prejudice in
civilian life because of an undesirable discharge.

23.  On 21 June 1973, the captain serving as acting commander of Company B,
U.S. Army Personnel Confinement Facility, Fort George G. Meade, recommended
the applicant for separation from the U.S. Army under the provisions of
chapter 10 of Army Regulation 635-200.  The separation action was reviewed
and was found legally sufficient by the Deputy Post Judge Advocate on 22
June 1973.

24.  On 26 June 1973, the colonel in command of Fort George G. Meade,
Maryland, approved the applicant’s request for discharge under the
provisions of chapter 10 of Army Regulation 635-200 and directed that the
applicant be reduced to the rank of private/pay grade E-1 and issued an
Undesirable Discharge Certificate.

25.  A DA Form 3082-R (Statement of Medical Condition), dated 29 June 1973,
shows the applicant acknowledged that he underwent a separation medical
examination more than three working days prior to his departure from place
of separation and that there had been no change in his medical condition.

26.  The applicant's DD Form 214, with an effective date of 29 June 1973,
shows that he was discharged under the provisions of chapter 10 of Army
Regulation 635-200 for the good of the service in lieu of trial by court-
martial and that his character of service was under other than honorable
conditions.  The applicant served 1 years and 4 months of active service
and 988 days of time loss during this enlistment.  This discharge document
also shows that the applicant was issued a DD Form 258A (Undesirable
Discharge Certificate).

27.  There is no evidence showing that the applicant applied to the Army
Discharge Review Board for an upgrade of his discharge within its 15-year
statute of limitations.
28.  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
submit a request for discharge for the good of the service in lieu of trial
by court-martial.  The request may be submitted at any time after charges
have been preferred and must include the individual's admission of guilt.
Although an honorable or general discharge is authorized, an undesirable
discharge is normally considered appropriate.

29.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

30.  Army Regulation 635-200, paragraph 3-3, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under conditions other than honorable
discharge should be upgraded because he served his country in his best
capacity, that his release was forced upon him, and that he was not given
the benefit of counsel.  In addition, the applicant contends that he
suffers from a number of illnesses that are a result of his service.

2.  The applicant’s request for separation under the provisions of chapter
10 of Army Regulation 635-200 for the good of the service to avoid trial by
court-martial was voluntary, administratively correct, and in compliance
with applicable regulations.

3.  Records show the applicant was properly and equitably discharged in
accordance with the regulations in effect at the time, which all
requirements of law and regulations were met, and the rights of the
applicant were fully protected throughout the separation process.

4. The applicant’s service record shows instances of possession of a
suspected illegal substance, failure to report to his designated place of
duty, and failure to obey a lawful order.  The applicant’s record of
service clearly shows that his overall quality of service did not meet the
standards of acceptable conduct and performance of duty for Army personnel.
 Thus, the applicant is not entitled to an honorable discharge.

5.  The applicant's record of service shows that he was AWOL from the Army
for 988 days and dropped from the rolls on three occasions.  Based on the
nature of the applicant's indiscipline, his service was not satisfactory.
Therefore, the applicant is not entitled to a general discharge.

6.  The applicant provided no evidence, and there is no evidence in the
available records, that supports the applicant’s contention that his
release from military service was forced upon him, or that he was not given
the benefit of counsel.  In fact, records contain documentation which shows
the applicant acknowledged that he consulted with legal counsel on both his
request for discharge and the benefits associated with the possible types
of discharge.

7.  The applicant provided 23 pages of medical documents from the time of
his military service, which included his separation physical examination.
Records show that the applicant was in good health and did not have any
medical conditions at the time of his separation.  There is no evidence in
available records, and the applicant has not provided any evidence, that
shows he was diagnosed or treated for any illnesses that were the result of
his military service.

8.  Army Regulation clearly provides that discharges are based on the
quality of the Soldier's military service in accordance with published
standards.  Discharges are not granted or upgraded for the purpose of
making an individual eligible for medical care or other benefits.

9.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 29 June 1973; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
28 June 1976.  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

__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                 |AR20050001538                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050823                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19730629                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 10                  |
|DISCHARGE REASON        |Discharge in Lieu of Trial by Court     |
|                        |Martial                                 |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0000.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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