RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 DECEMBER 2005
      DOCKET NUMBER:  AR20050003632


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Hise                    |     |Chairperson          |
|     |Mr. Ronald Blakely                |     |Member               |
|     |Ms. Jeanette McCants              |     |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 records be corrected by upgrading his
discharge to honorable.

2.  The applicant states that he was young and made a big mistake for which
he is now paying.  He was young then and is now 58 years old and knows what
a big mistake he made by being absent without leave (AWOL).  He served in
Vietnam from 1968 to 1969 honorably receiving a bronze star; however, when
he returned to the States from Vietnam he began drinking and using drugs.

3.  The applicant provides a copy of DD Form 215 (Correction to DD Form
214, Report of Separation from Active Duty) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 24 June 1970.  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 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.  Documents in the applicant’s records show he enlisted in the Regular
Army and entered active duty on 15 April 1966, at 19 years of age.  He
served in Vietnam from April 1967 to June 1968, and received the Vietnam
Service Medal and the Vietnam Campaign Medal with 60 Device.  He received
no personal decorations like the Bronze Star Medal as he claims.

4.  On 7 June 1966, the applicant was punished under the provisions of
Article 15, Uniform Code of Military Justice for exceeding the mile
limitation while on pass.  His punishment was restriction for 14 days.





5.  On 30 November 1966, he was convicted by a special court-martial of
being absent without leave (AWOL) from 15 October 1966 to 30 October 1966.
He was sentenced to confinement at hard labor for 3 months, to be reduced
to the lowest enlisted grade, and a forfeiture of pay.

6.  On 1 October 1969, he was convicted by a special court-martial of being
AWOL from 21 November 1968 to 16 August 1969.  He was sentenced to
confinement at hard labor for 6 months and a forfeiture of pay for 6
months.

7.  On 23 March 1970, the applicant’s commander preferred court-martial
charges against him for disobeying a lawful order from a commissioned
officer (two specifications) and for being AWOL from 12 December 1069 to 10
March 1970.

8.  On 7 April 1970, after consulting with legal counsel, the applicant
voluntarily submitted a request for discharge for the good of the service,
under Army Regulation 635-200, chapter 10, in lieu of trial by court-
martial.  He acknowledged that he understood the effects of receiving a
less than honorable discharge.

9.  On 21 May 1970, the applicant’s company and intermediate commanders
recommended approval of his discharge request, with the issuance of an
undesirable discharge.

10.  On 1 June 1970, the appropriate separation authority approved his
request and directed his reduction to pay grade E-1, and the issuance of an
undesirable discharge.

11.  On 24 June 1970, the applicant was discharged under the provisions of
Army Regulation 635-200, Chapter 10, for the good of the service, with a
characterization of service of under conditions other than honorable.  His
DD Form 214 (Armed Forces of the United States Report of Transfer or
Discharge) indicates he had 2 years, 8 months, and 7 days of creditable
service, and 548 days of lost time.

12.  On 17 February 1976, the applicant’s was awarded a clemency discharge
under Presidential Proclamation 4314 of 16 September 1974.

13.  On 21 September 1981, the Army Discharge Review Board denied the
applicant's petition to upgrade his discharge.



14.  Army Regulation 635-200, then in effect, set forth the basic authority
for the separation of enlisted personnel.  Chapter 10 of that regulation
provided, in pertinent part, that a member who had committed an offense or
offenses for which the authorized punishment included a punitive discharge
could at any time after the charges had been preferred, submit a request
for discharge for the good of the service in lieu of trial by court-
martial.  At the time of the applicant’s separation, the regulation
provided for the issuance of an under conditions other than honorable
discharge.

15.  Presidential Proclamation 4313, issued on 16 September 1974, provided
for the issuance of a clemency discharge to certain former soldiers who
voluntarily entered into and completed an alternate restitution program
specifically designed for former soldiers who received a less than
honorable discharge for AWOL related incidents between August 1964 and
March 1973.  Upon successful completion of the alternate service, former
members would be granted a clemency discharge by the President of the
United States, thus restoring his or her affected civil rights.  The
clemency discharge did not affect the underlying discharge and did not
entitle the individual to any benefits administered by the Veterans
Administration.  Soldiers who were AWOL entered the program by returning to
military control and accepting a discharge in lieu of trial by court-
martial.

16.  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 voluntarily requested separation under Army Regulation
635-200, Chapter 10, for the good of the service, to avoid a trial by court-
martial.  His administrative separation was accomplished in compliance with
applicable regulations with no indication of procedural error which would
tend to jeopardize his rights.

2.  The applicant was advised of the effects of a less than honorable
discharge and that he might be deprived of many or all Army and VA
benefits.  He was afforded the opportunity to submit statements in his own
behalf, but he declined to do so.

3.  The applicant's contention that he was young at the time is not
sufficiently mitigating to warrant the relief requested.  The Board notes
that the applicant was almost 20 years of age at the time of his first AWOL
offense.

4.  His service in Vietnam is noted but not sufficiently compelling to
justify granting the relief requested.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 21 September 1981.
 As a result, the time for the applicant to file a request for correction
or any error or injustice to this Board expired on 20 September 1984.
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

___JH___  __RB ___  __JM ___  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.




                                  _______James Hise________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050003632                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051220                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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