RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 September 1005
      DOCKET NUMBER:  AR20050003894


      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             |
|     |Mrs. Victoria A. Donaldson        |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Richard T. Dunbar             |     |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 upgrade of his undesirable discharge to an
honorable discharge.

2.  The applicant states he was the only son.  The applicant continues that
his father died in 1968, that he was ordered to Vietnam and he was not
supposed to go.

3.  The applicant contends he was told that, if he enlisted for an
additional year, he would receive training in the welding trade.

4.  The applicant provides no documentary evidence in support of this
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 11 March 1970, the date of his separation from active
duty.  The application submitted in this case is dated 2 March 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 record shows that he enlisted in the Regular Army and
entered active duty on 13 May 1968.  The applicant's enlistment contract
does not show the applicant was guaranteed technical training in any
specialty.  He was trained in, awarded, and served in military occupational
specialty (MOS) 62E20 (Crawler Tractor Operator) and the highest rank he
attained while serving on active duty was Private/pay grade E-2.

4.  The applicant’s service personnel records show he was awarded the
National Defense Service Medal.  These records do not show awards for
service in Vietnam or that he served in Vietnam

5.  The applicant's records contain a 17 January 1969 letter from the
executive officer of Company B (Provisional) of the United States Army
Garrison at Fort Ord, California.  This letter provides a report pertaining
to the unauthorized absences of the applicant.  The applicant is identified
as single, with no record of indebtedness and with no known difficulty with
his superiors.  The report continued the applicant had no known personal
friends in the unit, there was no evidence of his intent not to return,
there was no indication of foul play or mental instability, and there was
no evidence among his personal effects to indicate why he absented himself.

6.  The applicant's records contain a 22 January 1969 letter to his parents
which informed them that their son had been dropped from the rolls as a
deserter.

7.  On 27 June 1968, a special court-martial convicted the applicant of
being absent without leave (AWOL) from on or about 20 October 1968 through
on or about 18 December 1968 and for being AWOL from on or about 25
December 1968 through on or about 29 May 1969.  The resultant sentence
included confinement at hard labor for six months and forfeiture of $70.00
per month for six months.

8.  On 4 March 1970, the unit commander advised the applicant that he was
recommending the applicant’s discharge under the provisions of Army
Regulation 635-212 (Personnel Separations) by reason of unfitness.

9.  The applicant consulted with legal counsel and after being advised of
the basis for the contemplated separation, its effects and the rights
available to him, he waived his right to consideration of his case by a
board of officers, personal appearance before a board of officers, and his
right to counsel.  The applicant elected not to provide statements on his
behalf.

10.  On 9 March 1970, the separation authority directed the applicant’s
separation under the provisions of Army Regulation 635-212 for unfitness
and that he receive an Undesirable Discharge Certificate.  On 11 March
1970, the applicant was discharged accordingly.  The DD Form 214 (Armed
Forces of the United States Report of Transfer or Discharge) issued to him
at the time, confirms the applicant completed a total of 8 months, and
16 days of creditable active military service and that he accrued a total
of 409 days of time lost due to AWOL and confinement.

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

12.  There is no evidence in the available records which shows the
applicant was identified as the sole surviving son in accordance with Army
Regulation 614-200 (Selection of enlisted Soldiers for Training and
Assignment).

13.  Army Regulation 614-200 states, in pertinent part, that commanders
having General Court Martial Convening authority will authorize assignment
limitations.  This will be done after determining that the applicant is a
sole surviving son or daughter.

14.  Army Regulation 635-212, in effect at the time, set forth the basic
authority, established the policy, and prescribed the procedures for
separating members for unfitness.  An undesirable discharge was normally
considered appropriate for members separating under these provisions.

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations), 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.

16.  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.  The applicant contends that his undesirable discharge should be
upgraded to an honorable discharge because he was the only son and he was
not supposed to go to Vietnam.

2.  The applicant contends he was told that, if he enlisted for an
additional year, he would receive training in the welding trade and that
this did not occur.



3.  The record confirms that all requirements of law and regulation were
met and the applicant’s rights were fully protected throughout the
separation process.  The record further shows the applicant’s discharge
accurately reflects his overall record of undistinguished service.

4.  The applicant's record of service included conviction by special court-
martial for being AWOL for 409 days.

5.  Based on this record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  This misconduct and lost time also renders his service
unsatisfactory. Therefore, he is not entitled to either a general or an
honorable discharge.

6.  There is no evidence in the available records which supports the
applicant's contention he was the sole surviving son.  Additionally, there
is no evidence and the applicant has not provided sufficient evidence which
shows he was identified by military officials as a sole surviving son in
accordance with applicable Army Regulations. The applicant infers he was a
sole surviving son and should not have been ordered to the Republic of
Vietnam.  There is no evidence he was ordered to or served in the Republic
of Vietnam.

7.  There is no evidence and the applicant did not provide sufficient
evidence which supports his contention he was to receive training in the
welding trade.  Absent evidence to support his contention, there is no
basis to grant the relief requested.

8.  In order to justify correction of a military record the applicant must
satisfactorily show, or it must otherwise satisfactorily appear, that the
record is in error or unjust.  The applicant has failed to submit
sufficient evidence that would satisfy this requirement.

9.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 11 March 1970; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 10 March 1973.  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___  _RTD___  _BJW____  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.




                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050003894                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050901                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19700311                                |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |unfitness                               |
|BOARD DECISION          |deny                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0000.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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