RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           22 November 2005
      DOCKET NUMBER:  AR20050005634


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Thomas A. Pagan               |     |Chairperson          |
|     |Mr. Eric N. Anderson              |     |Member               |
|     |Mr. Joe R. Schroeder              |     |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, an upgrade of his undesirable
discharge (UD).

2.  The applicant states, in effect, that there was confusion and
misinformation involved at the time of his separation.  He claims that upon
his return from the Republic of Vietnam (RVN) in July 1968, he was assigned
to Fort Hood, Texas.  He states that he spoke to a first sergeant (1SG) at
Fort Hood, who told him to stay home until they cut new orders.  After a
month, he again called Fort Hood and the 1SG again advised him to sit tight
and he would be sent the orders.  He states after another month went by,
his mother called Fort Hood and she was told the same thing.  He states
that in February 1969, he was arrested by the Federal Bureau of
Investigation (FBI) for desertion and placed in jail.  He was returned to
military control at Fort Riley, Kansas, where he was convicted of being
absent without leave (AWOL) by a special court-martial (SPCM) on
31 March 1969.

3.  The applicant claims he joined the local Sheriff’s Department and was a
deputy sheriff for a few years.  He then moved a few miles away from Fort
Riley and while on his way to work he was stopped by the local police.
They ran a check on him, and he was listed as a deserter from the Army.  He
was transported to Fort Benjamin Harrison, Indiana, where he was given an
UD.  He concludes by stating that he was punished for doing what he was
told by the Army.

4.  The applicant provides a self-authored statement and his separation
document in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 22 November 1974.  The application submitted in this case
is dated 31 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 enlisted in the Regular Army and
entered active duty on 25 October 1966.  He was initially trained in,
awarded, and served in military occupational specialty (MOS) 51N (Water
Supply Specialist).  His Enlisted Qualification Record (DA Form 20) shows
he served in the RVN from
11 July 1967 through 4 July 1968.  During his RVN tour, he was assigned to
111th Engineer Company, performing duties in MOS 51N, as a water
purification helper.

4.  Item 41 (Awards and Decorations) of the applicant’s DA Form 20 shows he
earned the following awards during his active duty tenure:  National
Defense Service Medal; RVN Campaign Medal with 60 Device; Vietnam Service
Medal; Sharpshooter Qualification Badge with Rifle Bar; and 1 Overseas Bar.


5.  Upon his departure from the RVN on 4 July 1968, the applicant was
reassigned to Fort Hood.  On 14 August 1968, after failing to report to
Fort Hood, the applicant was placed in an AWOL status.  He remained away
until being apprehended by civilian authorities and returned to military
control at Fort Riley on 11 February 1969.

6.  On 8 April 1969, a SPCM found the applicant guilty of being AWOL from
on or about 14 August 1968 through on or about 10 February 1969.  The
resultant sentence included a reduction to private/E-1 (suspended) and a
forfeiture of $50.00 per month for four months.

7.  The applicant was assigned to Company C, 83rd Engineer Battalion, Fort
Riley on 15 April 1969, and was assigned duties in MOS 64B (Heavy Truck
Driver).

8.  On 9 June 1969, the applicant departed AWOL from his unit at Fort Riley
and he remained away until being apprehended by civilian authorities on
19 November 1974.

9.  On 22 November 1974, the applicant consulted with legal counsel and was
advised of the nature of the offenses for which he could be tried, the
maximum permissible punishment that could be imposed, the possible
consequences of an UD, the nature and effect of his pledge to perform
alternate service, and of the procedures and rights available to him.
Subsequent to receiving this legal counseling, the applicant voluntarily
requested discharge for the good of the service pursuant to the provisions
of Presidential Proclamation 4313.
10.  In his request for discharge, he indicated that his absence was
characterized as a willful and persistent unauthorized absence for which he
was subject to trial by court-martial for violation of the Uniform Code of
Military Justice (UCMJ).  He further indicated that he was making the
request for discharge of his own free will and was not subjected to any
coercion whatsoever.  He further acknowledged he would receive an UD and
that he understood the adverse nature of such a discharge and the possible
consequences thereof.  He also acknowledged that he understood he could be
ineligible for 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.  He finally acknowledged his
understanding that he could encounter substantial prejudice in civilian
life based on his UD.

11.  On 22 November 1974, the applicant was separated with an UD after
completing 2 years, 1 month, and 18 days of creditable active military
service and accruing 2168 days of time lost due to AWOL.  The DD Form 214
he was issued confirms he was separated for the good of the service by
reason of willful and persistent unauthorized absence pursuant to
Presidential Proclamation 4313.

12.  On 4 April 1979, the Army Discharge Review Board (ADRB), after
carefully considering the applicant’s case, found his discharge was proper
and equitable, and it voted to deny his request for an upgrade of his
discharge.  In addressing the applicant’s contention that he was told to
stay home and await orders, the ADRB noted that after being returned to
military control after his initial period of AWOL resulting from his
failure to report to Fort Hood, the applicant again departed AWOL from his
unit at Fort Riley, and that he admitted his last absence was willful.  The
ADRB further noted that there was no evidence showing the applicant ever
performed or completed the alternate service necessary to receive a
clemency discharge under the provisions of Presidential Proclamation 4313.

13.  Presidential Proclamation 4313, dated 16 September 1974, announced a
clemency program designed to provide deserters an opportunity to work their
way back into American society.  This proclamation pertained to all
individuals who were carried administratively as deserters if their last
period of AWOL was between 4 August 1964 and 28 March 1973.  Under this
program, eligible enlisted deserters were offered the opportunity to
request an UD for the good of the service if they agreed to perform
alternate service under the supervision of the Selective Service System.
Successful completion of alternate service entitled a participant to
receive a Clemency Discharge Certificate.

14.  Clemency Discharges issued pursuant to PP # 4313 did not impact the
underlying discharge a member received and did not entitle the individual
to any benefits administered by the VA.  The Army Discharge Review Board
adapted the policy that a Clemency Discharge would be considered by a board
in its deliberations but that the discharge per se did not automatically
require relief be granted.

15.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (Army Regulation 15-185,
paragraph 2-8), effectively shortens that filing period, has determined
that the 3 year limit on filing to the ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the Board has
adopted the broader policy of calculating the 3-year time limit from the
date of exhaustion in any case where a lower level administrative remedy is
utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that there was confusion and misinformation
involved at the time of his separation, and that he was punished for doing
what the Army told him to do was carefully considered.  However, there is
insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant committed an offense that
was punishable under the UCMJ with a punitive discharge.  After consulting
with defense counsel, he voluntarily requested discharge for the good of
the service pursuant to Presidential Proclamation 4313.  The record further
confirms all requirements of law and regulation were met and that the
rights of the applicant were fully protected throughout the separation
process.

3.  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.

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 4 April 1979.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 3 April 1982.  He failed to 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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___TAP     ___ENA_   ___JRS _  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.




            ____Thomas A. Pagan____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050005634                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/11/22                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1974/11/22                              |
|DISCHARGE AUTHORITY     |PP 4313                                 |
|DISCHARGE REASON        |Good of the Service                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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