RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 October 2005
      DOCKET NUMBER:  AR20050005846


      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:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Kenneth W. Lapin              |     |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 that his undesirable discharge be upgraded to a
general discharge.

2.  The applicant states, in effect, that he now realizes that he made an
error in judgment at that time and contends that he did not receive proper
counsel.  He continues that he felt he had no other choice than to accept
the discharge so he may attend his brother's funeral.

3.  The applicant provides a three-page statement and five letters of
support from a family member and friends.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 27 June 1972, the date of his separation from active duty.  The
application submitted in this case is dated 2 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.  The applicant enlisted in the Oklahoma Army National Guard (OKARNG) on
24 April 1969.  After completion of basic and advanced individual training,
he was awarded military occupational specialty 11B (Light Weapons
Infantryman).  On 29 October 1970, the applicant was discharged from the
OKARNG by reason of non-participation and ordered to active duty effective
30 October 1970.

4.  Item 38 (Record of Assignments) of the applicant's DA Form 20 (Enlisted
Qualification Records) shows he was listed absent without leave (AWOL) on
16 August 1971.  On 26 October 1971, the applicant was dropped from the
rolls as a deserter.

5.  The applicant's service records contain a letter from the applicant's
unit commander, dated 28 January 1972, addressed to the applicant's family.
 The letter stated that on 2 July 1971, the applicant was on ordinary leave
to the United States and on 2 August 1971, he was granted a 10-day
extension per his request.  The letter further stated that on 16 August
1971, the applicant was placed on AWOL status and informed that his
continued absence may result in conviction for desertion and result in loss
in pay and allowances, in confinement or dismissal, or in a dishonorable or
bad conduct discharge from the Army.

6.  The applicant's service records contain a DD Form 458 (Charge Sheet),
dated 2 May 1972, which charged the applicant with AWOL for the period 3
November 1971 through 23 April 1972.

7.  The applicant's service records contain an undated form which shows the
applicant consulted with legal counsel on 4 May 1972 and was advised of the
basis for the contemplated trial by court-martial that provided for a
punitive discharge, the effects of a request for discharge for the good of
the service and of the rights available to him.  Subsequent to this
counseling, he voluntarily requested discharge under the provision of Army
Regulation 635-200, chapter 10, for the good of the service, in lieu of
trial by court-martial.  In his request for discharge, the applicant
indicated that he had not been coerced into requesting discharge and had
been advised of the implications that were attached to the request.  He
further acknowledged that he could be discharged under other than honorable
conditions and be furnished an Undesirable Discharge Certificate.  He also
stated that he understood that as a result of receiving such a discharge,
he may be deprived 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.

8.  On 8 May 1972, the applicant's commander recommended that the
applicant’s request for discharge be approved and recommended an
undesirable discharge.

9.  On 1 June 1972, the major general in command of the Headquarters 2nd
Armored Division approved the applicant’s request for discharge and
directed that he be issued an Undesirable Discharge Certificate and reduced
to the lowest grade.

10.  The applicant's service records contain a DA Form 2496 (Disposition
Form), dated 6 June 1972, from the American Red Cross, which indicates that
on 5 June 1972, the applicant's brother was killed in an automobile
accident on the morning of 5 June 1972.

11.  The applicant's DD Form 214 shows that he was discharged on 27 June
1972, under the provisions of chapter 10 of Army Regulation 635-200, for
the good of the service and issued an Undesirable Discharge Certificate
with service characterized as under other than honorable conditions.  He
had served
11 months and 20 days of net active service and had 252 days of AWOL.

12.  The applicant submitted a three-page statement wherein he states while
stationed in Germany, he took 30 days of leave so he could be with his wife
for the birth of his first child.  He continues that he received an
emergency extension of that leave due to the complications of his child's
birth.  He further states that he had gone AWOL because he was broke and
couldn't afford to buy a plane ticket to return to Germany.

13.  The applicant contends that he tried to get help at Fort Sill,
Oklahoma; however, no one would help.  The applicant continues that after
he turned himself in (for the second time), he spoke with his commanding
officer about the situation and was informed he had a case against the
Army.  The applicant further stated after the death of his brother, he
consulted with a Judge Advocate General officer and received an undesirable
discharge.

14.  The applicant concluded that he is well-respected in his community and
has owned his own business for years; therefore, wishes his discharge be
upgraded

15.  The applicant also submitted five letters of support from a family
member and friends wherein they all state how the applicant is well-
respected in the community, and is an honest and hard-working individual.

16.  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.

17.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel)
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.

18.  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.

19.  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 be upgraded to
general under honorable conditions.

2.  Evidence shows the applicant’s administrative separation was
accomplished in compliance with applicable regulations and there is no
indication of procedural errors that would tend to jeopardize his rights.
The discharge proceedings were conducted in accordance with law and
regulations applicable at the time and the character of the discharge is
commensurate with the applicant's overall record of military service.

3.  The applicant contends that he did not receive proper counsel and
accepted the discharge so he may attend his brother's funeral.

4.  Contrary to the applicant's contention, evidence of record confirms
that the applicant was charged with an offense that is punishable under the
Uniform Code of Military Justice with a punitive discharge.  After
consulting with defense counsel, the applicant voluntarily requested
discharge from the Army in lieu of trial by court-martial.  His request for
discharge was approved by the proper convening authority prior to the
notification of his late brother's death.

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 252 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 27 June 1972; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 26 June 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

_JNS__  __KWL___  __LDS___  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 N. Slone___
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050005846                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051018                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1972/06/27                              |
|DISCHARGE AUTHORITY     |AR 635-200, ch 10                       |
|DISCHARGE REASON        |For the good of the service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000/discharge                      |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]