RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 August 2005
      DOCKET NUMBER:  AR20050003144


      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. Alan Chin                     |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Ms. Deborah S. Jacobs             |     |Member               |
|     |Mr. Michael J. 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, in effect, that his undesirable discharge,
characterized as under conditions other than honorable, be upgraded to an
honorable discharge.

2.  The applicant states, in effect, that he was sent papers in the 1970’s
or 1980’s by President Nixon to have his discharge reversed; however, his
home burned.  He continues that he needs the discharge upgraded and
therefore he would like to have it now.

3.  The applicant provides in support of his application a two page undated
letter of support from his spouse; a copy of an undated Standard Form 180
(Request Pertaining to Military Records); a copy of a VA Form 21-4138
(Department of Veterans Affairs – Statement in Support of Claim), dated 1
February 2005; a Formedic History and Physical diagnosis form, dated 3
March 1999; and two medical discharge summary reports from North
Mississippi Medical Center, dated 26 July 2002 and 1 February 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 28 August 1973, the date of his voluntary separation from
active duty.  The application submitted in this case is dated 23 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 service personnel records show he enlisted in the
Regular Army on 13 January 1969 for a period of 3 years.  He successfully
completed basic and advanced individual training and was awarded the
military occupational specialty 70A10 (Clerk).



4.  The applicant was discharged on 12 September 1969 while stationed in
the Republic of Vietnam and immediately reenlisted on 13 September 1969 for
a period of 3 years.  The highest grade the applicant held was the rank of
private first class/pay grade E-3.

5.  Records show that on 27 September 1969, the applicant was granted a
30-day reenlistment leave.  He failed to return to his unit and on 8
November 1969, he was reported absent without leave (AWOL).  On 8 December
1969, the applicant was dropped from the rolls of the Army.

6.  DA Form 3836 (Notice of Return of US Army Member from Unauthorized
Absence), shows that on 10 July 1973, the applicant was apprehended by the
civilian authorities in Tupelo, Mississippi and he was returned to military
control at Fort McClellan, Alabama on the same day.

7.   Headquarters, 101st Airborne Division Orders 151 [Fort Campbell,
Kentucky], dated 10 July 1973, assigned the applicant to the United States
Army Personnel Control Facility, same station, with an effective date of 10
July 1973.

8.  Records show that on 3 August 1973, the applicant’s commander preferred
court-martial charges against him for being AWOL from 8 November 1969 to
10 July 1973.

9.  On 3 August 1973, the applicant submitted a request for discharge for
the good of the service under the provisions of chapter 10 of Army
Regulation
635-200.  The applicant indicated in his request that he understood he
could be discharged under other than honorable conditions and furnished an
Undesirable Discharge Certificate, that he may be deprived of many or all
Army benefits, that he may be ineligible for many or all benefits
administered by the Veteran’s Administration (VA), and that he may be
deprived of his rights and benefits as a veteran under both Federal and
State law.

10.  The applicant submitted a statement in his own behalf.  In his
statement he acknowledged that he was likely to receive an undesirable
discharge and that he would lose his VA and other Army and government
benefits.  He stated that he still wanted to be discharged because he could
neither adjust to the Army’s life nor was he suited for it.  He further
stated that he hated the Army and would have a better life as a civilian.

11.  On 3 August 1973, the applicant’s unit commander recommended approval
of his discharge with issuance of an Undesirable Discharge Certificate.

12.  On 7 August 1973, the intermediate commander recommended disapproval
of the applicant’s discharge request and requested an Article 32
investigation.

13.  On 21 August 1973, the appropriate authority approved the
recommendation for discharge under the provisions of chapter 10 of Army
Regulation 635-200 and directed that the applicant be furnished an
undesirable discharge.  He also directed that the applicant be reduced to
the rank of private/pay grade E-1.

14.  On 28 August 1973, the applicant was discharged under the provisions
of chapter 10 of Army Regulation 635-200, with an undesirable discharge.
His
DD Form 214 (Armed Forces of the United States Report of Transfer or
Discharge) reflects he had served 11 months and 13 days of total active
service and had 1,341 days of lost time.

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

16.  In a letter submitted by the applicant’s spouse in support of his
petition, she states, in effect, that he was in Vietnam and got an
undesirable discharge.  She states that he had depression for years and has
been in and out of hospitals.  She continues that he now has bad lungs and
is on oxygen.  She further states that as the years go he is worse and she
and her family needs his discharge overturned.

17.  The Department of the Army Special Discharge Review Program (SDRP) was
based on a memorandum from Secretary of Defense Brown and is often referred
to as the “Carter Program.”  It mandated the upgrade of individual cases in
which the applicant met one of several specified criteria and when the
separation was not based on a specified compelling reason to the contrary.
The ADRB had no discretion in such cases other than to decide whether
recharacterization to fully honorable as opposed to a general discharge was
warranted in a particular case. An individual who had received a punitive
discharge was not eligible for consideration under the SDRP.  Absentees who
returned to military control under the program were eligible for
consideration after they were processed for separation.  Eligibility for
the program was restricted to individuals discharged between 9 August 1964
and 28 March 1973, inclusive, with an undesirable, under other than
honorable conditions, or a general discharge.  Individuals could have their
discharges upgraded if they met any one of the following criteria: wounded
in action; received a military decoration other than a service medal;
successfully completed an assignment in Southeast Asia; completed alternate
service; received an honorable discharge from a previous tour of military
service; or completed alternate service or excused there from in accordance
with Presidential Proclamation 4313 of 16 September 1974.  Compelling
reasons to the contrary to deny discharge upgrade were desertion/AWOL in or
from the combat area; discharge based on a violent act of misconduct;
discharge based on cowardice or misbehavior before the enemy; or discharge
based on an act of misconduct that would be subject to criminal prosecution
under civil law.

18.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel),
then in effect, 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, submit a request
for discharge for the good of the service in lieu of trial by court-
martial.  The request may be submitted at any time after charges have been
preferred and must include the individual's admission of guilt.  Although
an honorable or general discharge is authorized, a discharge under other
than honorable conditions is normally considered appropriate.

19.  Army Regulation 635-200, paragraph 3-7a, 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.

20.  Army Regulation 635-200, paragraph 3-7b, 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 contends that his undesirable discharge should be
upgraded to honorable.

2.  The ABCMR does not grant requests for upgrade of discharges solely for
making the applicant eligible for benefits.

3.  The applicant states, in effect, that he was sent papers in the 1970’s
or 1980’s by President Nixon to have his discharge reversed, but his home
burned.  There is no evidence in the applicant’s service personnel records
nor has he provided any documentary evidence to support this claim.

4.  Records show that the applicant voluntarily requested separation under
the provisions of chapter 10 of Army Regulation 635-200 for the good of the
service to avoid trial by court-martial.  In doing so, the applicant
admitted guilt to the offense charged and accepted an undesirable discharge
in lieu of trial by court-martial.

5.  Evidence of record shows the applicant’s request for discharge was
voluntary, administratively correct, and in compliance with applicable
regulations in effect at the time.

6.  Evidence of record shows that all requirements of law and regulations
were met and the rights of the applicant were fully protected throughout
the separation process.

7.  The applicant’s administrative separation has no indication of
procedural errors which would tend to jeopardize his rights.  The type of
discharge and reason for separation were appropriate considering all the
facts of the case.

8.  The applicant’s military record of service includes over 1,300 days of
lost time due to AWOL.  As a result, his Army service does not meet the
standards of acceptable conduct and performance of duty for Army personnel.
 Furthermore, this service is also not satisfactory in view of the amount
of his lost time and reasons for his extended absences.  Based on these
facts, his overall service is not sufficiently meritorious to warrant
relief in the form of an honorable or a general discharge.

9.  The Board also reviewed the applicant’s request using the criteria set
forth in the SDRP.  Although the applicant met at least one of the criteria
for consideration there were compelling reasons to the contrary that his
discharge should not have been upgraded due to his offense of
AWOL/desertion.  Most importantly, the applicant’s 28 August 1973 discharge
date was well beyond the 28 March 1973 eligibility cut-off date for SDRP
consideration.

10.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 August 1973; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
27 August 1976.  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

__DJS___  __JNS__  __MJF___  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  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 N. Slone_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050003144                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050811                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19730828                                |
|DISCHARGE AUTHORITY     |AR 635-200, CHAP 10                     |
|DISCHARGE REASON        |IN LIEU OF COURT-MARTIAL                |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |MR. CHUN                                |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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