RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          22 September 2005
      DOCKET NUMBER:  AR20050002304


      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. 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
honorable.

2.  The applicant states even though the documents indicate he was given
the opportunity to have a court-martial, he was not.  He claims while in
the stockade he was told that if he signed the papers he would not be court-
martialed.  He also claims that they did not tell him his discharge would
be anything but honorable.  He further claims that he had a problem with
women and alcohol.  He points out that he served his country well in
Vietnam, that he received the Bronze Star Medal among other awards, that he
was wounded in action, and he believes that should be worth something.  He
states he was in his fifties when he started getting his life together,
that he has a family, and that he goes to church now.

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 28 May 1969.  The application submitted in this case is dated 2
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 28 October 1965 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 10 August 1966.

4.  While in Vietnam, on 21 September 1966, in accordance with his plea,
the applicant was convicted by a special court-martial of being absent
without leave (AWOL) from 19 April 1966 to 23 June 1966.  He was sentenced
to perform hard labor without confinement for 2 months, to be reduced to E-
1, and to forfeit $60 per month for 2 months.  On 28 September 1966, the
convening authority approved the sentence.

5.  The applicant returned to the United States on 7 August 1967.  He was
awarded the Bronze Star Medal and the Air Medal while serving in Vietnam.

6.  On 5 February 1968, nonjudicial punishment was imposed against the
applicant for failure to repair.  His punishment consisted of a forfeiture
of pay and extra duty.

7.  On 25 June 1968, in accordance with his plea, the applicant was
convicted by a special court-martial of being AWOL from 5 June 1968 to 18
June 1968.  He was sentenced to be confined at hard labor for 6 months, to
be reduced to E-1, and to forfeit $90 per month for 6 months.  On 25 June
1968, the convening authority approved the sentence but suspended the
portion of the sentence adjudging confinement at hard labor for 6 months
until 22 December 1968.  On
8 November 1968, the suspended portion of the sentence was vacated.

8.  On 14 November 1968, in accordance with his plea, the applicant was
convicted by a special court-martial of being AWOL from 11 July 1968 to
8 November 1968.  He was sentenced to be confined at hard labor for 6
months and to forfeit $97 per month for 6 months.  On 15 November 1968, the
convening authority approved the sentence.  On 3 January 1969, the
unexecuted portion of the sentence to confinement was suspended until 6
February 1969.  On
31 January 1969, the unexecuted portion of the sentence to confinement was
remitted.

9.  The applicant went AWOL on 5 March 1969 and returned to military
control on 19 April 1969.  On 13 May 1969, charges were preferred against
the applicant for the AWOL period.

10.  After consulting with counsel, the applicant submitted a request for
discharge for the good of the service (in lieu of trial by court-martial)
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.

11.  On 8 May 1969, the applicant underwent a separation physical
examination and was found qualified for separation.

12.  On 21 May 1969, the separation authority approved the applicant's
request for discharge and directed that he be furnished an undesirable
discharge.

13.  Accordingly, the applicant was discharged with an undesirable
discharge on 28 May 1969 under the provisions of Army Regulation 635-200,
chapter 10, for the good of the service.  He had served 2 years, 7 months
and 15 days of total active service with 192 days of lost time due to AWOL
and confinement.

14.  There is no evidence in the applicant's service personnel records
which shows the applicant was diagnosed with alcohol abuse or dependency.

15.  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.

16.  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.

17.  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.

18.  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 contentions were noted.  However, evidence of record
shows the applicant voluntarily requested discharge in lieu of trial by
court-martial.  Evidence of record also shows the applicant indicated in
his request that he understood that he could be discharged under other than
honorable conditions and furnished an Undesirable Discharge Certificate.

2.  There is no medical evidence of record which shows that the applicant
was diagnosed with alcohol abuse or dependency prior to his discharge.

3.  Good post service conduct alone is not a basis for upgrading a
discharge.

4.  The applicant’s voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, in lieu of 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 reasons for going AWOL or his concerns and he failed to do
so.

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

6.  The applicant’s service in Vietnam and his awards and decorations were
considered.  However, his record of service also included one nonjudicial
punishment, three special court-martial convictions, and 192 days of lost
time.  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 or honorable discharge.

7.  Records show the applicant should have discovered the alleged injustice
now under consideration on 28 May 1969; therefore, the time for the
applicant to file a request for correction of any injustice expired on 27
May 1972.  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                 |AR20050002304                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050922                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19690528                                |
|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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