RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 July 2005
      DOCKET NUMBER:  AR20050003288


      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. Antoinette Farley             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Larry C. Bergquist            |     |Member               |
|     |Mr. James B. Gunlicks             |     |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 an
honorable discharge.

2.  The applicant states, in effect, that he was young.  He contends that
he had several personal problems, his parents were divorcing and his
grandfather died after being ill.  He admits that he has made mistakes and
has paid for them.

3.  The applicant provides in support of his application two Citations of
Recognition and three letters of character reference.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 10 December 1969, the date of his separation.  The application
submitted in this case is dated 22 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 initially enlisted in the Regular Army on 7 November 1960
for a period of three years.  He completed basic combat training, advanced
individual training and was awarded the military occupational specialty
121.10 (Combat Engineer).  On 4 May 1968, he was assigned to Company A, 1st
Battalion, 13th Infantry in Germany, for duty.

4.  On 29 July 1968, the applicant was honorably discharged for the purpose
of reenlistment.  The applicant completed 8 months and 6 days of active
duty and received a waiver for 3 days of lost time.  On the same day, he
reenlisted in the Regular Army for a period of three years.

5.  On 8 September 1968, the applicant was listed as being absent without
leave (AWOL) from Company A, 1st Battalion, 13th Infantry.

6.  On 23 October 1968, the applicant was apprehended and returned to
military control at the United States Army Special Processing Detachment,
Fort Knox, Kentucky.

7.  On 2 November 1968, while pending court-martial charges, the applicant
again went AWOL.

8.  On 11 April 1969, the applicant was apprehended and returned to
military control at U. S. Army Special Processing Detachment, Fort George G
Meade, Maryland.

9.  The applicant's military personnel records contain partial separation
processing documents.  The available records shows that U. S. Army Special
Processing Detachment, Fort George G. Meade, prepared a DD Form 458 (Charge
Sheet) which shows that the applicant was charged with violation of the
Uniform Code of Military Justice, Article 86, for absenting himself from
active duty for the period 8 September 1968 through 23 October 1968 and for
the period 2 November 1968 through 11 April 1969.  He was then placed into
pretrial confinement.

10.  On 18 November 1969, the applicant consulted with counsel and
voluntarily requested a discharge for the good of the service in lieu of
trial by court-martial under the provisions of chapter 10 of Army
Regulation 635-200 (Personnel Separations).  His request acknowledged that
he was guilty as charged or of a lesser-included offense for which he could
receive a bad conduct or dishonorable discharge.  He acknowledged that he
understood the nature and consequences of being discharged under other than
honorable conditions, including that he might lose some or all-veteran
benefits.  He also acknowledged that, once his request for discharge is
submitted, it may be withdrawn only with the consent of the commander
exercising court-martial authority, or without the commander’s consent in
the event trial results in an acquittal or the sentence does not include a
punitive discharge even though one could have been adjudged by the court.
Further, he understood that if he departed absent without leave, the
request may be processed and he may be discharged even though he is absent.
 He elected not to submit a statement in his own behalf.

11.  On 24 November 1969, the applicant was found medically qualified for
separation.

12.  On 9 December 1969, Headquarters, Fort George G. Meade, issued Special
Orders Number 244 approving the applicant's request for discharge and
directed that he be separated for the good of the service, under other than
honorable conditions.

13.  The applicant’s DD Form 214 (Armed Forces of The United States Report
of Transfer or Discharge), dated 10 December 1969, shows that he was
discharged under the provisions of chapter 10, Army Regulation 635-200 for
the good of the service and issued an Undesirable Discharge Certificate.

14.  The applicant had completed 5 months and 13 days of creditable active
service during this period of active service and accrued a total of 340
days of lost time due to AWOL or confinement.  The highest grade he
attained was private first class/pay grade E-1.

15.  On 1 May 1979, the Army Discharge Review Board (ADRB) considered his
case and found that he had been properly discharged.  The ADRB denied the
applicant's request to upgrade his discharge.

16.  The applicant provided a copy of a Certificate of Recognition, dated
30 January 1989, from the Office of the Mayor from the City of Columbus,
Ohio.  The Certificate of Recognition acknowledged the applicant's
willingness to place his concern for the public good ahead of his personal
interests.  The certificate recognized that the applicant accepted the
position Resident Manager of the Samaritan House which allowed a needy
family to use his home and car.  It also recognized that the applicant was
the first Columbus Kroger Company employee to receive the Barney H. Kroger
Community Service award out of the 150,000 Kroger employees.

17.  The applicant provided a copy of a Certificate of Recognition,
undated, through the sponsorship of Richard C. Pfeiffer, Jr., Ohio State
Senator and from the 118th General Assembly of the State of Ohio.  The
Certificate of Recognition extended special congratulations to the
applicant for receiving the B.H. Kroger Award for Community Service award
and saluted him as one of Ohio's finest citizens.

18.  The applicant submitted a letter from a family friend, dated 31 July
2004.  The author stated that he and the applicant had known each other for
32 years and a friend of his family for that entire time.  The author adds
that the applicant has always been there when his family needed support in
any way and never though twice about helping.  The author continues by
saying that the applicant is a kind, caring, and sincere individual who
deserves his Veterans benefits.
19.  The applicant submitted a second letter from a family friend, dated
31 July 2004.  The author stated that he and the applicant have been family
friends since long before his birth in 1975.  The author adds that the
applicant has continued to make his friendship a part of his life and has
extended his helping-hand numerous times.  The author states that the
applicant possesses the personal qualities he strives for in his life and
treasures him as a role model.  The author adds that the applicant is an
upstanding, contributing member of society and has helped him with his
Veterans benefits.

20.  The applicant submitted a third letter from a family friend, dated
31 July 2004.  The author contends that they have known each other for over
30 years and considers him a part of his family.  The author adds that the
applicant has shown his character to be of a true friendship throughout the
30 years.  The author continues by saying that the applicant has never
failed to lend a helping hand to him or anyone who needs it.  The author
states that the applicant saved his home from foreclosure.

21.  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.

22.  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.

23.  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.

24.  The Manual for Courts-Martial, Table of Maximum Punishments, sets
forth the maximum punishments for offenses chargeable under the UCMJ.  A
punitive discharge is authorized for an AWOL in excess of 30 days.

25.  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 Army Discharge Review Board (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
Army Board for Correction of Military Records (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 contends that his discharge should be upgraded to an
honorable discharge.

2.  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.  He had an opportunity to submit a
statement in which he could have voiced his reasons for going AWOL and he
failed to do so.

3.  Evidence of record shows that the applicant was properly and equitably
discharged in accordance with the regulations in effect at the time.
Lacking evidence to the contrary, it is determined that all requirements of
law and regulations were met and the rights of the applicant were fully
protected throughout the separation process.

4.  The applicant's record of service shows that his quality of service did
not meet the standards of acceptable conduct and performance of duty for
Army personnel. Therefore, he is not entitled to an honorable discharge.

5.   The applicant’s record of service included periods of AWOL with 340
days of lost time and/or confinement.  As a result, his service was not
satisfactory.  Therefore, the applicant's record of service is
insufficiently meritorious to warrant a general discharge.

6.  The applicant’s contentions about his personal problems are noted,
however, there is no substantiating evidence that the events occurred as he
contends.

7.  Further, his good post service conduct, letters of character reference
and Citations of Recognition are noted.  However, these factors do not
outweigh the serious nature of the offenses committed while in the service.
 Therefore, they are not sufficiently mitigating to warrant relief.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 May 1979, the date of the ADRB
review; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 30 April 1982.  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

____LB_  __WDP__  ___JBG__  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.




                                       __William D. Powers __
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050003288                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/07/28                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1969/12/10                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Chapter 10                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Director                                |
|ISSUES         1.       |A144.0000                               |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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