RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          8 November 2005
      DOCKET NUMBER:  AR20050002400


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Ms. Diane J. Armstrong            |     |Member               |
|     |Ms. Delia R. Trimble              |     |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 a
more favorable discharge.

2.  The applicant states no reasons nor does he submit matters in
mitigation for requesting an upgrade of his discharge.

3.  The applicant provides no supporting documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 16 March 1976.  The application submitted in this case is dated
20 January 2005 and was received on 15 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.  He enlisted in Cincinnati, Ohio, on 18 September 1969 for a period of 3
years and training as a wheeled vehicle mechanic.  He was single at the
time of his enlistment.  He completed his training and was transferred to a
signal company in Goeppingen, West Germany.  He was advanced to the pay
grade of E-4 on 25 September 1970.

4.  On 29 September 1970, he was honorably discharged for the purpose of
immediate reenlistment.  He had served 1 year and 12 days of total active
service. On 30 September 1970, he reenlisted for a period of 3 years and
assignment to Vietnam.

5.  He departed Germany on 16 October 1970 with orders directing him to
report to the overseas replacement station at Fort Lewis, Washington, on 29
November 1970, for movement to Vietnam.  He failed to report as ordered and
was reported as being absent without leave (AWOL) on 29 November 1970.  He
remained absent until he was returned to military control at Fort Lewis on
26 December 1970, when charges were preferred against him for the AWOL
offense.
6.  He was convicted by a special court-martial on 28 December 1970 of
being AWOL from 29 November to 25 December 1970.  He plead guilty and was
sentenced to be reduced to the pay grade of E-1 and a forfeiture of pay.

7.  He again went AWOL on 15 January 1971 and remained absent in a deserter
status until he was apprehended by Federal Bureau of Investigations (FBI)
officials in Cincinnati, Ohio, on 19 February 1976 and was returned to
military control at Fort Knox, Kentucky, where charges were preferred
against him for the AWOL charges.

8.  On 24 February 1976, he completed a Record of Emergency Data (DA Form
41) in which he indicated that he was married with three children who were
born in November 1971, February 1972 and September 1973, all who resided in
Cincinnati.

9.  On 3 March 1976, after consulting with defense counsel, the applicant
submitted a request for discharge for the good of the service, under the
provisions of Army Regulation 635-200, chapter 10, in lieu of trial by
       court-martial.  In his request he indicated that he understood the
charges that had been preferred against him, that he was making the request
of his own free will, without coercion from anyone and that he was aware of
the implications attached to his request.  He also admitted that he was
guilty of the charges against him or of lesser included offenses which
authorized the imposition of a bad conduct or dishonorable discharge.  He
acknowledged that he understood that he could receive a discharge under
other than honorable conditions and that he might be deprived of all
benefits as a result of such a discharge.  He further elected to submit a
statement in his own behalf in which he stated that he enlisted in the Army
because he could not find a job and that his wife tried to kill herself
when he had to report back to the Army.  He also stated that he did not
want to stay in the Army and would be disappointed if he was not
discharged.

10.  The appropriate authority (a major general) approved his request on 8
March 1975 and directed that he be furnished an Undesirable Discharge
Certificate.

11.  Accordingly, he was discharged under other than honorable conditions
on 16 March 1976, under the provisions of Army Regulation 635-200, chapter
10, in lieu of trial by court-martial.  He had served 1 year, 3 months and
29 days of total active service and had 704 days of lost time due to AWOL
prior to his normal expiration of term of service (ETS) and 1250 days of
lost time due to AWOL subsequent to his normal ETS.

12.  There is no evidence in the available records to show that he ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that board’s 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge
for the good of the service in lieu of trial by court-martial.  A condition
of submitting such a request is that the individual concerned must admit
guilt to the charges against them or of a lesser included offense which
authorizes the imposition of a bad conduct or dishonorable discharge and
they must indicate that they have been briefed and understand the
consequences of such a request as well as the discharge they might receive.
 A discharge under other than honorable conditions is normally considered
appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate considering all of the available facts of the case.

3.  The applicant’s overall record of undistinguished service and extensive
periods of unauthorized absences, during a short period of service, simply
does not rise to the level of a discharge under honorable conditions.

4.  After being afforded the opportunity to assert his innocence before a
trial by court-martial, he voluntarily requested a discharge for the good
of the service in hopes of avoiding a punitive discharge and having a
felony conviction on his records.  In doing so he admitted guilt to the
charges against him.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 March 1976; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 15 March 1979.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__sk____  __dja___  __drt___  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.



                                  Stanley Kelley
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050002400                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051108                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1976/03/16                              |
|DISCHARGE AUTHORITY     |AR635-200/CH10 . . . . .                |
|DISCHARGE REASON        |GD OF SVC                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |689/A70.00                              |
|1.144.7000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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