RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 October 2005
      DOCKET NUMBER:  AR20050005328


      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. Maria C. Sanchez              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Barbara J. Ellis              |     |Chairperson          |
|     |Mr. Hubert O. Fry, Jr.            |     |Member               |
|     |Mr. Robert Rogers                 |     |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 be
upgraded to a general discharge.

2.  The applicant states, in effect, that his discharge is unjust based on
three factors: 1) the length of time that has passed since the initial
discharge; 2) the length of service was very short, only 33 days; and 3) he
was a Canadian citizen at the time of his enlistment.  He continues that he
used poor judgment in his young teenage years.

3.  The applicant further states that he had no criminal record other than
the unfortunate enlistment and early departure and has lived in disgrace
and guilt for over 35 years.

4.  The applicant provides a copy of his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge) with an effective date of 9
August 1973, a copy of his Undesirable Discharge Certificate, dated 9
August 1973; and a one page letter, dated 28 March 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 9 August 1973, the date of his separation.  The application
submitted in this case is dated 28 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 service records show he was a Canadian citizen and was
20 years old at the time he enlisted in the United States Army on 11 August
1969 for a period of three years.




4.  Item 38 (Record of Assignments) of the applicant's DA Form 20 (Enlisted
Qualification Record) shows on 19 August 1969, he was assigned to the 13th
Battalion, 4th Brigade at the U.S. Army Training Center Armor in Fort Knox,
Kentucky for basic training.  Item 44 (Time Lost) of this form also shows
that he was absent without leave (AWOL) on 14 September 1969.

5.  The applicant's service records contain a DD Form 553 (Absentee Wanted
By The Armed Forces), dated 16 October 1969, which shows he was AWOL on
14 September 1969 and dropped from the rolls on 14 October 1969.

6.  The applicant's service records contain a letter, dated 2 May 1973,
addressed to the applicant, which advised him that he was being discharged
from the Army by reason of misconduct (desertion).  This letter also
informed the applicant that receipt of such discharge, may deprive him of
many or all Army benefits, that he could be ineligible for many or all
benefits administered by the Department of Veterans Affairs (VA), and that
he could be deprived of his rights and benefits as a veteran under both
Federal and State law.

7.  The applicant's service records contain a PS Form 2865 (Return Receipt)
which shows that on 11 May 1973, the above stated letter was delivered to
the applicant's residence in Canada and the Return Receipt was signed by
him.

8.  The applicant's discharge processing documents were not available in
his military service records.

9.  The applicant's DD Form 214 shows that he was discharged on 9 August
1973.  Item 11c shows the narrative reason as "Alien DFR [Dropped From the
Rolls] for More Than One Year by Department of the Army Message 161800Z,
dated July 1973."  The DD Form 214 shows he was issued an Undesirable
Discharge Certificate, and his service was characterized as "Under
Conditions Other Than Honorable."  The DD Form 214 shows the applicant had
served 1 month, and 11 days of total active service and had 1416 days of
lost time due to AWOL.

10.  There is no evidence in the available records which shows that the
applicant applied to the Army Discharge Review Board for an upgrade of his
discharge within that board’s 15-year statute of limitation.





11.  Department of the Army Message 161800Z, dated July 1973, provided
guidance regarding discharge of aliens who were dropped from the roles for
more than one year.  This message was implemented in Change 42 of Army
Regulation 635-200 (Personnel Separations – Enlisted Personnel) in
paragraph 15-16.  In pertinent part, it states that alien members of the
Army will be discharged for prolonged unauthorized absence in absentia when
all the following circumstances exist:

      a)  The unauthorized absence has continued for 1 year or longer.

      b)  The alien is known to be residing in a foreign country.

      c)  The notification requirements in paragraph 15-17 have been
completed.

12.  Paragraph 15-17 of Army Regulation 635-200 states, in pertinent part,
that when an absentee is residing at a known address in a foreign country
which has registered mail service, a letter stating the basis for pending
discharge action will be sent to the individual by registered mail, return
receipt requested.

13.  Army Regulation 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 (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.

14.  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 a general discharge.



2.  In the absence of evidence to the contrary, it is presumed that all
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout the separation process.  Further, it is
determined that the type of discharge and the reason for discharge are
appropriate considering all the facts of the case.

3.  The applicant contends that he was young and used poor judgment when he
enlisted.

4.  Records show the applicant was 20 years old at the time of his
enlistment and 21 years old at the time of his AWOL.  There is no evidence
that indicates that the applicant was any less mature than other soldiers
of the same age who successfully completed military service.

5.  After a review of the applicant’s record of service, it is evident that
his quality of service did not meet the standards of acceptable conduct and
performance of duty for Army personnel.  Therefore, he is not entitled to
an honorable discharge.

6.  The period of service under consideration includes 1416 days of AWOL
and separation with an Undesirable Discharge Certificate.  Therefore, this
period of service is unsatisfactory and does not merit a general discharge.

7.  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 has failed to
submit evidence that would satisfy this requirement.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 9 August 1973; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 8 August 1976.  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

_HOF___  _  RR__  _BJE_____  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.




                                     __Barbara J. Ellis_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050005328                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051019                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1973/08/09                              |
|DISCHARGE AUTHORITY     |AR 635-200, para 15-16                  |
|DISCHARGE REASON        |Alien DFR more than 1 year              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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