RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 October 2005
      DOCKET NUMBER:  AR20050002710


      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. John Slone                    |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Kenneth W. Lapin              |     |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 (UD) be upgraded
to a honorable or a general discharge (GD).

2.  The applicant states that upon his return from Vietnam, he was unable
to adjust to state-side duty.  He was assigned to Fort Hood, Texas.  They
had no slot for him in his engineer MOS (military occupational specialty)
so they sent him to a tank unit as a gunner.  He had no experience or
training in this job. He complained to the Inspector General (IG) and was
reassigned to permanent barracks orderly and the post pistol team.  He was
later assigned to permanent guard duty.  After spending almost a year of
his life in another country, where his main purpose was to stay alive, it
was very hard to adjust to Army life in the States.

3.  The applicant states he served in combat in Vietnam and his conduct and
efficiency ratings were good.  While in combat, he saw many of his friends
killed and he did no less than the Soldiers who are in Iraq now.  He adds
that his record of absent without leave (AWOL) indicates only minor or
isolated offenses.  Prior to his departure to Vietnam, he went AWOL because
he knew when he left home that time, it would possibly be the last time he
would see his family.  He knew he would be going to Vietnam and was young
and immature.  He prolonged his visit as long as he could.

4.  The applicant states that after returning from Vietnam, he was
stationed in Texas.  He was having problems with anger and nightmares about
Vietnam and became frustrated.  He was thinking of his friends who were
still in Vietnam and those who had been killed there.  He felt useless and
went AWOL to his home in Alabama.  After 30 days, he returned to Fort Hood
and turned himself in.  He was given an Article 15 under the Uniform Code
of Military Justice (UCMJ), and was reduced from specialist five (SP5/E-5)
to specialist four (SP4/E-4).  He went AWOL again and turned himself in at
Fort McClellan, Alabama.  He remained there a week cutting grass before
being sent to Fort Campbell, Kentucky.

5.  He states that he did not request a discharge and was not properly
counseled about the discharge.  While in Kentucky, he was never asked why
he had gone AWOL.  He was eventually told to sign a paper and he would be
let out of the Army.  He was not told anything about a less than honorable
discharge or the implications of his signing the document.  He was never
counseled nor was he provided rehabilitation-just told to sign a paper.

6.  The applicant provides a copy of his DD Form 214 (Report of Transfer or
Discharge) in support of his application.
CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 4 May 1971, the date of his discharge.  The application
submitted in this case is dated 14 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 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 active duty on
11 September 1968, as a construction and utilities specialist (51A).  He
served in Vietnam from 24 April 1969 to 16 April 1970 as a carpenter (51B).
 He was promoted to specialist five (E-5) on 21 February 1970.

4.  On 17 September 1970, he was punished under Article 15, UCMJ, for being
AWOL from 23 August to 14 September 1970. His punishment consisted of a
reduction to E-4.

5.  Item 44 (Time Lost), of his DA Form 20 (Enlisted Qualification Record),
shows that he was AWOL from 4 February to 3 March 1969 (28 days), from
23 August to 13 September 79 (22 days), from 26 December 1970 to 25 January
1971 (31 days) and from 26 January to 3 April 1971 (68 days).

6.  All the documents containing the facts and circumstances surrounding
the applicant's discharge are not present in the available records.
However, the applicant submitted a copy of his DD Form 214 which shows that
on 4 May 1971, he was discharged under the provisions of Army Regulation
635-200, chapter 10, for the good of the service, in lieu of trial by court-
martial, in the pay grade of E-1. He was furnished an UD certificate.  He
had a total of 2 years, 2 months, and 26 days of creditable service and
149 days of lost time due to AWOL.

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


8.  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, may 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.

9.  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.

10.  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.  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 applicant’s record is void of facts and circumstances concerning
the events that led to a discharge from the Army.

3.  The Board noted that the applicant’s record contains a properly
constituted DD Form 214 which was authenticated by the applicant.  This
document identifies the reason and characterization of the discharge and
the Board presumed Government regularity in the discharge process.

4.  The evidence of record shows the applicant was discharged under the
provisions of Chapter 10, AR 635-200, for the good of the service in lieu
of trial by court-martial.
5.  It is apparent, from the authority for the applicant's discharge,
that charges were preferred against the applicant; however, these
documents are not available for review and the applicant failed to
provide this information to the Board.  There is no evidence, and the
applicant has provided none, upon which to base an upgrade of his UD.

6.  Careful consideration has been given to the applicant's contentions
regarding the events that occurred prior to his AWOL, his service in
Vietnam, and after his return to the States; however, they are insufficient
to support an upgrade of his UD.

7.  The applicant alleges that he did not request a discharge, was not
properly counseled, was told to sign a paper, was not told anything about a
less than honorable discharge or the implication of signing the document,
and that he was not provided rehabilitation.  However, there is no
evidence, and the applicant has provided no evidence to support his
allegations.

8.  There is no evidence in the applicant's records, and the applicant has
provided none, to show that he applied for an upgrade of his discharge to
the ADRB within its 15-year statute of limitations.

9.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 4 May 1971; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 3 May 1974.  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

_JS_____  _KWL____  __LDS__  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.




                                  _      _John Slone  _____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002710                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051018                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19710504                                |
|DISCHARGE AUTHORITY     |AR 635-200, chapter 10                  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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