RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 November 2005
      DOCKET NUMBER:  AR20050002730


      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. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Ms. Diane Armstrong               |     |Member               |
|     |Ms. Delia 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.

2.  The applicant states that he was under so much stress and could not
cope with the situation he was in at the time.

3.  The applicant provides two supplemental statements; a statement from
his employer; a criminal background check; military photos; a Compensation
and Pension Exam Report; a letter from his physician; and a DA From 8-275-3
(Clinical Record Cover Sheet).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 20 March 1972.  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 enlisted in the Regular Army on 6 May 1968 at 17 years
old.  He completed basic combat training and advanced individual training
and was awarded military occupational specialty 76W (Petroleum Storage
Specialist).  He was promoted to specialist four on 30 August 1968.  The
applicant was assigned to Germany in September 1968 and was reassigned to
Vietnam on 16 March 1969.

4.  On 16 April 1969, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice for violating an order by
failing to properly secure his vehicle.

5.  The applicant was wounded in action on 22 September 1969 and was
awarded the Purple Heart for the wounds he received in action.

6.  The applicant's personnel records show he was in an absent without
leave (AWOL) status from his unit in Vietnam on 5 February 1970.  He
returned to military control on 23 June 1970 by surrendering to military
authorities at Fort Ord, California.

7.  Records show the applicant departed AWOL again on 28 June 1970 and
returned to military control on 5 October 1970.

8.  On 5 November 1970, he departed AWOL again and returned to military
control on 15 February 1972 by surrendering to military authorities at Fort
MacArthur, California.  He was then transferred to Fort Ord, California and
confined.

9.  On 17 February 1972, charges were preferred against the applicant for
being AWOL from 5 February 1970 to 23 June 1970, 28 June 1970 to 5 October
1970, and 5 November 1970 to 15 February 1972.  The applicant's Charge
Sheet
(DD Form 458) shows he was AWOL from 12 October 1970 to 15 October 1970;
however, this period of AWOL is not listed as lost time on his DD Form 214
and is shown on the Charge Sheet only.

10.  On 24 February 1972, the applicant consulted with legal counsel and
voluntarily requested discharge for the good of the service under the
provisions of Army Regulation 635-200, chapter 10.  In doing so, he
admitted guilt to the offenses charged and acknowledged that he might
encounter substantial prejudice in civilian life and that he might be
ineligible for many or all Army benefits administered by the Veterans
Affairs (VA) if an undesirable discharge was issued.  The applicant
submitted statements in his own behalf.

11.  The applicant stated he had 18 months and good time and two years and
6 months of bad time.  He stated he had one Article 15 for not locking a
vehicle and was pending charges for five periods of AWOL for a total of two
years and one month from Fort Ord and Oakland Air Force Base.  He also
stated that he was requesting a chapter 10 discharge because he did not
believe in the Army.  He stated the Army was wasting its money and
resources.  He could not stand taking orders or harassment and wanted to be
free.  He further stated that he knew he could never adjust to military
life again and there was no use in him trying.

12.  The applicant's DA Form 20 shows he was confined from 17 February 1972
to 2 March 1972.

13.  On 11 March 1972, the separation authority approved the discharge
under the provisions of Army Regulation 635-200, chapter 10 with issuance
of an Undesirable Discharge Certificate.

14.  The applicant was discharged on 20 March 1972 under the provisions of
Army Regulation 635-200, chapter 10 for the good of the service with an
undesirable discharge.  He had completed 1 year, 8 months and 16 days of
active military service with 719 days of lost time.

15.  On 10 June 1974, the Army Discharge Review Board (ADRB) denied the
applicant's request for an upgrade of his discharge.

16.  On 15 October 1981, the ADRB denied the applicant's request for an
upgrade of his discharge.

17.  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.  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.

18.  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, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.

19.  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.

20.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (Army Regulation 15-185,
paragraph 2-8), effectively shortens that filing period, has determined
that the 3 year limit on filing to the ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the ABCMR has
adopted the broader policy of calculating the 3-year time limit from the
date of exhaustion in any case where a lower level administrative remedy is
utilized.

DISCUSSION AND CONCLUSIONS:

1.  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.  There is no indication that the
request was made under coercion or duress.

2.  The applicant's record of service shows he received one Article 15 for
failing to properly secure his vehicle and was later charged with being
AWOL for over 700 days.

3.  The applicant’s tour of duty in Vietnam was noted.  It is also noted he
departed AWOL while in Vietnam from 5 February 1970 to 23 June 1970.  His
overall record of service was not satisfactory and did not meet the
standards of acceptable conduct and performance of duty for Army personnel.


4.  The applicant has failed to show through the evidence submitted or the
evidence of record that the type of discharge issued to him was in error or
unjust.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 October 1981, the date of the last
ADRB review; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 14 October 1984.  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______  DA______  DT______  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                 |AR20050002730                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051108                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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