RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           6 October 2005
      DOCKET NUMBER:  AR20050002183


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Curtis Greenway               |     |Chairperson          |
|     |Mr. Richard Dunbar                |     |Member               |
|     |Ms. Laverne Berry                 |     |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 be
upgraded.

2.  The applicant states he has two discharges from the Army, the first one
is an honorable discharge and the second one is a dishonorable discharge
due to a tragic incident with his then wife.  He contends that when he came
home on leave from Vietnam he accidentally wounded his wife when she woke
him from a deep sleep.  He states he thought he was being attacked by the
Viet Cong.  He also states he tried to get help many times to no avail
which caused him to overstay his leave.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 24 November 1972.  The application submitted in this case is
undated; however, the application was received in this office on 9 February
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.  The applicant enlisted on 30 June 1969 for a period of 3 years.  He
successfully completed basic combat training and advanced individual
training in military occupational specialty 11B (light weapons infantryman)
and was transferred to Vietnam on 20 November 1969.  On 10 May 1970, the
applicant was honorably discharged for immediate reenlistment.  While in
Vietnam, he reenlisted on 11 May 1970 for a period of 3 years.

4.  The applicant departed Vietnam on his reenlistment leave on 1 June 1970
and did not return.  He was reported being absent without leave (AWOL) from

1 July 1970 to 14 August 1970, 20 August 1970 to 9 November 1970, 25
January 1971 to 25 January 1971, 16 February 1971 to 29 November 1971, and
13 January 1972 to 20 August 1972.  On 31 August 1972, charges were
preferred against the applicant for the AWOL periods.  Trial by special
court-martial was recommended.

5.  On 14 September 1972, after consulting with counsel, the applicant
submitted a request for discharge for the good of the service under the
provisions of Army Regulation 635-200, chapter 10.  He indicated in his
request that he understood that he could be discharged under other than
honorable conditions and furnished an Undesirable Discharge Certificate,
that he might be deprived of many or all Army benefits, that he might be
ineligible for many or all benefits administered by the Veterans
Administration and that he might be deprived of his rights and benefits as
a veteran under both Federal and State law.  He also acknowledged that he
might encounter substantial prejudice in civilian life because of an
undesirable discharge.  He elected not to submit a statement in his own
behalf.

6.  On 27 October 1972, the separation authority approved the applicant’s
request for discharge and directed that he be furnished an undesirable
discharge.

7.  Accordingly, the applicant was discharged with an undesirable discharge
on 24 November 1972 under the provisions of Army Regulation 635-200,
chapter 10, for the good of the service.  He had served 1 year, 7 months,
and 28 days of total active service with 636 days of lost time due to AWOL.


8.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge within its 15-year statute of
limitations.

9.  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, an undesirable
discharge was normally considered appropriate.

10.  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.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record of service included 636 days of lost time during
his last enlistment.  As a result, his record of service was not
satisfactory and did not meet the standards of acceptable conduct and
performance of duty for Army personnel.  Therefore, the applicant's record
of service is insufficiently meritorious to warrant a general discharge or
an honorable discharge.

2.  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.  He had an opportunity to submit a
statement in which he could have voiced his concerns or reasons for going
AWOL and he failed to do so.

3.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.

4.  Records show the applicant should have discovered the alleged injustice
now under consideration on 24 November 1972; therefore, the time for the
applicant to file a request for correction of any injustice expired on 23
November 1975.  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

CG_____  RD_____  LB______  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.




            __Curtis Greenway_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050002183                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051006                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19721124                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 10                  |
|DISCHARGE REASON        |For the good of the service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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