RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:       1 December 2005
      DOCKET NUMBER:  AR20050004167


      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. Luis Almodova                 |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. Richard G. Sayre              |     |Member               |
|     |Ms. Maribeth Love                 |     |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 discharge, under other than
honorable conditions, be upgraded to honorable.

2.  The applicant states, in effect, that he spent 30 days in a military
stockade at Fort Hood, Texas.  He is very sorry for his actions.  He asked
for a leave to get divorced.  His ex-wife was having an affair with his
commanding officer at the time. He spent 11 months and 1 week in Vietnam.
Since his discharge, he has been working and paying his taxes and has been
an honorable citizen for 33 years.

3.  The applicant provides a copy of his two DD Forms 214, Armed Forces of
the United States Report of Transfer or Discharge, in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 28 April 1972.  The application submitted in this case is dated
8 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 enlisted in the Regular Army for 3 years on 21 January
1970.  He successfully completed basic combat and advanced individual
training at Fort Polk, Louisiana.  On completion of his advanced training,
he was awarded the military occupational specialty (MOS),11B, Light Weapons
Infantryman.

4.  On 22 June 1970, the applicant was reassigned to Vietnam.  He was
assigned to Company A, 1st Battalion, 506th Infantry Regiment, 101st
Airborne Division.

5.  On 22 September 1970, the applicant reenlisted at Phu Bai, in pay
grade E-3, for 3 years.  The applicant was promoted to the rank and pay
grade Sergeant, E-5, on 1 April 1971.

6.  The applicant completed his tour of duty in Vietnam on 28 May 1971 and
was reassigned to Fort Hood, Texas, as a team leader with Troop A, 4th
Squadron, 9th Cavalry Regiment, 1st Cavalry Division.

7.  Item 44 (Time Lost Under Section 972, Title 10, United States Code and
Subsequent to Normal Date ETS [expiration term of service]), of the
applicant's DA Form 20, Enlisted Qualification Record, shows the applicant
had the following unauthorized absences:  22 November 1971 through 28
November 1971 / Absence Without Leave (AWOL) // 23 February 1972 through 1
March 1972 / AWOL // 2 March 1972 through 5 March 1972 / AWOL // 17 March
1972 through 19 March 1972 / AWOL // 20 March 1972 through 3 April 1972 /
AWOL //.

8.  The applicant was reduced to Specialist Four, E-4, for misconduct on
3 December 1971.

9.  The applicant received a summary court-martial for being absent without
leave for the period from on or about 0730 hours, 10 January 1972, to on or
about 1400 hours, 10 January 1972.  The applicant was reduced to Private, E-
2, on 18 February 1972.  He was given 45 days hard labor without
confinement, and a forfeiture of $225.00 pay per month, for one month.  The
forfeiture of pay was suspended for 180 days.  The sentence was adjudged on
18 February 1972.

10.  The applicant was reduced to Private, E-1, on 24 April 1972.

11.  The discharge "packet" that was prepared for the applicant's
separation from the Army is not available in his service personnel records;
therefore, the facts and circumstances concerning events that led to his
discharge from the Army are not known.

12.  The applicant was discharged in the rank and pay grade, Private, E-
1, on 28 April 1972, under the provisions of Army Regulation (AR) 635-
200, Chapter 10.  The Separation Program Number (SPN) applied to the
applicant DD Form 214, SPN:  246, translates to:  For the good of the
service - in lieu of trial by court-martial.  The applicant's service was
characterized as, "under other than honorable conditions."

13.  On the date of his discharge, the applicant had completed 2 years, 2
months, and 2 days, total active military service, with 36 days lost due
to AWOL and, 33 days excess leave.
14.  Item 24 (Decorations, Medals, Badges, Citations, and Campaign Ribbons
Awarded or Authorized), of the applicant's two DD Forms 214, shows he was
awarded the National Defense Service Medal; the Vietnam Service Medal, with
one bronze service star; the Republic of Vietnam Campaign Medal; and the
Expert Marksmanship Qualification Badge, with Rifle Bar; while he served on
active duty.

15.  The applicant was awarded the Bronze Star Medal, for meritorious
service for the period June 1970 though April 1971, by General Orders
3189, Headquarters, 101st Airborne Division (Airmobile), dated 18 April
1971.  This award is not shown on the applicant's DD Forms 214.

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

17.  AR 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 submit, at any time
after the charges have been preferred, 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, but the
separation authority may direct a general discharge or an honorable
discharge if such is merited by the Soldier's overall record and if the
Soldier's record is so meritorious that any other characterization clearly
would be improper.

18.  AR 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.  Whenever there
is doubt, it is to be resolved in favor of the individual.

19.  AR 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 separation specifically allows such characterization.

20.  The applicant's statement that he asked for leave to get a divorce
because his wife was having an affair with his commanding officer cannot be
verified.  The applicant's record shows he established a record of
frequently going AWOL.  Had his wife been having an affair with his
commanding officer, as he alleges, he could easily have reported this to
those in leadership positions above the company level or to the inspector
general.  He could also have sought legal advice and counsel from the
division or installation staff judge advocate. His report would have been
investigated and the issue would have been resolved without his having to
resort to his going AWOL.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record is void of the facts and circumstances
concerning the events that led to his discharge from the Army.  The
applicant’s record contains a properly constituted DD Form 214, which was
authenticated by the applicant.  This document identifies the reason and
characterization of the discharge.  Government regularity in the discharge
process is presumed.

2.  The evidence of record shows the applicant was discharged under the
provisions of AR 635-200, chapter 10, for the good of the service, in lieu
of trial by court-martial.  In connection with such a discharge, the
applicant was charged with the commission of an offense punishable under
the UCMJ (Uniform Code of Military Justice) with a punitive discharge.
Procedurally, the applicant was required to consult with defense counsel,
and to voluntarily, and in writing, request separation from the Army in
lieu of trial by court-martial.  In doing so, the applicant admitted guilt
to the stipulated offenses under the UCMJ.

3.  In the absence of information to the contrary, it is believed that all
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout the separation process.  The
characterization of service for this type of discharge is normally under
other than honorable conditions and it is believed that the applicant was
aware of that prior to requesting discharge.  It is believed that the
reason for discharge and the characterization of service were both proper
and equitable.

4.  The applicant’s entire record of service was reviewed.  The record
shows he was awarded the Bronze Star Medal for meritorious service while he
served in Vietnam; however, as an infantryman, the record fails to show
that he earned the coveted Combat Infantryman Badge.  The Bronze Star Medal
is not substantially mitigating to warrant the upgrade of the applicant's
discharge to general or honorable.

5.  The record contains no documentary evidence of acts of valor that would
warrant special recognition and an upgrade of his discharge characterized
as under other than honorable conditions.

6.  The quality of the applicant’s service was considered.  However, this
service was determined not to be sufficiently meritorious to warrant an
upgrade of the characterization of his service.  The applicant alleges that
he went AWOL repeatedly because his wife was having an affair with his
commanding officer.  The available evidence did not support this allegation
and the applicant provided none to prove this allegation.  Had his ex-wife
been having an affair with his commanding officer, as he alleges, he could
easily have reported this to those in leadership positions above the
company level or to the inspector general.  He could also have sought legal
advice and counsel from the division or installation staff judge advocate.
His report would have been investigated and the issue would have been
resolved without his having to resort to his going AWOL.

7.  The applicant's misconduct and his pattern of repeatedly going AWOL led
to his discharge in lieu of trial by courts-martial.  These acts severely
diminished the overall quality of the service that should be expected of a
noncommissioned officer.  The evidence also shows that other violations of
law were committed, for which charges were preferred against him, for which
a punitive discharge could have been given, which eventually led to his
discharge from the Army.

8.  The applicant, in his application to the Board stated that he has been
an honorable citizen since being discharged and that he has worked and paid
his taxes; however, he did not submit any evidence of his accomplishments
or service to the community, his church, or to other bodies, where he has
made a positive contribution, to corroborate his statement.

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

10.  In view of the foregoing, there is no basis for granting the
applicant's request for an upgrade of his under other than honorable
conditions discharge.

11.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 April 1972; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 27 April 1975.  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.

12.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 April 1972; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 27 April 1975.  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

__RGS __  __JTM__  ___MBL _  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.




                                  _____John T. Meixell  ____
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050004167                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051201                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  360  |144.0000                                |
|2.   394                |144.0133                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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