RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         15 November 2005
      DOCKET NUMBER:  AR20050004919


      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. Betty A. Snow                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Stanley Kelly                 |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Robert L. Duecaster           |     |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 undesirable discharge (UD)
be upgraded to a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, he was not informed of certain
procedures that would have enabled him to take the proper steps.  The
applicant claims that upon his return from the Republic of Vietnam (RVN) in
November 1969, he found his mother and father had separated, and that his
mother and his brothers and sisters were in a run-down apartment with no
utilities.  He claims he used what money and leave he had to get his family
into a better living situation and then reported to Fort Carson, Colorado.
He claims the day after he returned to
Fort Carson, he received a call from his sister indicating that his mother
had been placed in the hospital and she could not find her father to help
with the situation.  He told his sister to call his unit commander and
explain the situation, and he would request emergency leave.  He claims his
unit commander informed him that he did not believe there was a problem and
he would not be allowed to leave Fort Carson until his discharge.  He
states he felt angry and betrayed and after serving honorably for over two
years and fighting for his country, his country was not there for him when
he needed to take care of his family.  He indicates that he then went
absent without leave (AWOL) and remained away until being arrested on a
drug charge in 1974, at which time he was returned to military control.

3.  The applicant provides a two page self-authored statement and a
statement from his sister in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 1 August 1974.  The application submitted in this case is
dated
29 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 he enlisted in the Army and entered active
duty on 16 August 1967.  He was trained in, was awarded, and served in the
military occupational specialty (MOS) 13E20 (Field Artillery Cannon
Operator/Fire Direction Assistant), and the highest rank he attained while
on active duty was specialist four (SP4).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he
served in the Republic of Vietnam (RVN) from 8 April 1968 through 16
November 1969.  Item 41 (Awards and Decorations) shows that he earned the
following awards during his tenure on active duty:  Bronze Star Medal; Army
Commendation Medal; National Defense Service Medal; Vietnam Service Medal;
RVN Campaign Medal with 1960 Device; Marksman Qualification Badge with
Rifle Bar (M-14); Marksman Qualification Badge with Rifle Bar (M-16); and 3
Overseas Bars.

5.  The applicant’s record reveals a disciplinary history that includes his
acceptance of nonjudical punishment (NJP) under the provisions of Article
15 of the Uniform Code of Military Justice on two separate occasions.

6.  On 17 March 1970, the applicant accepted NJP for breaking restriction.
His punishment for this offense included forfeiture of $25.00 for one
month.

7.  On 24 March 1970, the applicant accepted NJP for being absent from his
unit. His punishment for this offense included a forfeiture of $62.00,
seven days extra duty and seven days restriction.

8.  On 12 July 1974, a Charge Sheet (DD Form 458) was prepared preferring a
court-martial charge against the applicant for violating Article 86 of the
UCMJ by being Absent Without Leave (AWOL) from on or about 29 May 1970
though on or about 8 July 1974.

9.  On 17 July 1974, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trail by court-martial, the
maximum permissible punishment authorized under the UCMJ, the possible
effects of an UD, and of the procedures and rights that were available to
him.  Subsequent to receiving this legal counsel, the applicant voluntarily
requested discharge for the good of the service, in lieu of trail by court-
marital.

10.  On 17 July 1974, the applicant submitted a statement in support of his
request for discharge.  In his statement, he indicted that he had asked for
leave to go home and help his family, but was refused, so he left on his
own.  He stated that he had no certain feelings or attitude for the Army.
In the eyes of the Army he was wrong for leaving and if his discharge is
denied, he doesn’t know how he will feel or react; however, he would go
AWOL again.

11.  On 17 July 1974, the separation authority approved the applicant’s
request for discharge and directed that he receive an UD.  On 1 August
1974, the applicant was discharged accordingly.

12.  The separation document (DD Form 214) issued to the applicant upon his
discharge confirms he completed a total of 2 years, 9 months and 12 days of
creditable active duty service, and that he accrued 1510 days of time lost
due AWOL and confinement.

13.  The applicant provides a statement from his sister who indicates that
she called the applicant to tell him their mother was placed in the
hospital and  she could not find their father to help with the situation.
She also states that she called the applicant’s unit commander to tell him
of the situation and to request her brother be allowed emergency leave.
She further states he brother came home and got a job, which allowed them
to move to a better place.  She states after her brother made sure they
were taken care of, he left for a few years before he returned home.  She
claims none of them knew at the time that the applicant had gone AWOL to
care for them.

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

15.  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.  A
discharge under other than honorable conditions is normally considered
appropriate.  However, at the time of the applicant's separation the
regulation provided for the issuance of an UD.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he went AWOL to care for his family and
that he was not informed of certain procedures that would have enabled him
to take the proper steps before going AWOL, along with the supporting
statements he provided were carefully considered.  However, while
unfortunate, these factors are not sufficiently mitigating to warrant
granting the requested relief.

2.  There is no indication that the applicant made a concerted effort to
resolve his personal problems without going AWOL.  Further, the statement
provided by his sister confirms that once he resolved his family’s living
situation, he left home and remained AWOL for two more years, and his own
statement confirms he did not voluntarily return to military control and
instead he was returned only after being apprehended on a drug violation.
As a result, although his family situation was unfortunate, it does not
appear to have been the only reason of his AWOL related misconduct.

3.  The evidence of record confirms the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, the applicant voluntarily
requested discharge from the Army in lieu of trial by court-martial.  All
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout the separation process.

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

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 August 1974; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
31 July 1977.  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__   ___JTM__  ___RLD _  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.




                                  _____Stanley Kelley______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004919                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-11-15                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1974-08-01                              |
|DISCHARGE AUTHORITY     |AR 635-200, CH 10. . . . .              |
|DISCHARGE REASON        |For the good of the service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0200.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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