RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 JANUARY 2006
      DOCKET NUMBER:  AR20050004856


      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. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Mr. William Crain                 |     |Member               |
|     |Mr. Gerald Purcell                |     |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 1971 discharge be upgraded.


2.  The applicant states that being drafted put him off course financially
for his obligations to his spouse and child.  He states this was his
priority before being drafted.  He states he lacked knowledge and help with
military rules and regulations, had been working to establish a constant
income for his family, lost his son and separated from his wife after he
was released by the Army, and since being incarcerated has learned of
benefits from the Department of Veterans Affairs.

3.  The applicant states his AWOL (absent without leave) was not because he
was disinterested in his country or the Army, but because of his ambitious
obligations for the family he left behind.

4.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 22 November 1971.  The application submitted in this case
is dated
26 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.  Records available to the Board indicate the applicant's son was born in
December 1968 when the applicant was 17 years old.  The applicant, his
spouse, and his son were residing with the applicant's parents when he was
inducted an entered active duty on 7 May 1971, three months shy of his 20th
birthday.  The applicant's statement of personal history indicates that he
attended high school through May 1970, but did not graduate.

4.  On 17 May 1971 following the applicant's 7 May 1971 induction, he was
assigned to a special training company at Fort Polk, Louisiana.  On 31 May
1971, while undergoing training, the applicant departed AWOL.  He was
subsequently dropped from the rolls of the Army.

5.  He returned to military control on 26 July 1971 and was placed in
confinement.  On 6 August 1971, while in confinement, he again departed
AWOL.  He was subsequently confined by civilian authorities on 27 September
1971, returned to military control on 7 October 1971 and placed in pretrial
confinement.

6.  When charges were preferred, the applicant consulted with counsel and
voluntarily requested discharge for the good of the service in lieu of
trial by court-martial.  His request acknowledged he understood the nature
and consequences of the undesirable discharge which he might receive.  He
indicated he understood he could be denied some or all veterans' benefits
as a result of his discharge and that he may be deprived of rights and
benefits as a veteran under both Federal and State law.  In a statement
submitted via his attorney, the applicant related that he had been plagued
with family and financial problems since his induction and that he was in
the 12th grade when he got married and was forced to go to work.  He
indicated since that time he never completely solved his financial trouble
and had been working for his family company, moving furniture, while he was
AWOL.  The attorney indicated the applicant related to him that he (the
applicant) was also unable to adjust to military life and desired to be
with his family and eager to make a new start if he were discharged.

7.  A mental health evaluation, conducted on 13 October 1971, found the
applicant fully alert and oriented, his memory good, and his thought
process clear and normal.  It determined the applicant was mentally
responsible, able to distinguish right from wrong and to adhere to the
right.

8.  The applicant's request was approved and the separation authority
directed that an undesirable discharge be issued.  On 22 November 1971 the
applicant was separated under the provisions of Army Regulation 635-200,
chapter 10.  He had less than 3 months of creditable service and more than
130 days of lost time as a result of AWOL and confinement.

9.  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.
An undesirable discharge is considered appropriate for individuals
separated under this provision of the regulation.
10.  The applicant's request to this Board was submitted from a confinement
facility in Texas.

11.  Information from the Department of Veterans Affairs indicates that
generally, a discharge under honorable conditions is necessary for
entitlement to benefits associated with that agency.  It also notes that
military service of less than 6 months may also preclude entitlement to
certain benefits.  The applicant may wish to contact the Department of
Veterans Affairs for a definitive answer regarding entitlement to any
benefits based on his brief period of military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s situation at the time he was inducted may have been
unfortunate, however, it does not serve as a basis for upgrading the
character of his 1971 discharge solely for the purpose of obtaining
possible benefits associated a veteran's service.  His situation was not
unlike other young men who were being drafted at the time who went on to
serve honorably.  The applicant requested to be discharged and his request
was granted with the full knowledge of the consequences of such an action.

2.  The fact that he may now regret the events that resulted in his
undesirable discharge, or that he may have had a change of heart, is not
sufficient to warrant an upgrade of the character of that discharge as a
matter of equity or justice.

3.  The applicant has submitted neither probative evidence nor a convincing
argument in support of his request.

4.  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 that requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 November 1971; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
21 November 1974.  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

___JI  ___  ___WC__  ___GP __  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 Infante________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004856                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060119                                |
|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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