RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 November 2005
      DOCKET NUMBER:  AR20050006980


      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. Margaret K. Patterson         |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 discharge be upgraded.

2.  The applicant did not provide a statement on his application.

3.  The applicant provided page 1 of a DD Form 293 (Application for the
Review of Discharge from the Armed Forces of the United States), dated 4
April 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 8 May 1973, the date of his separation.  The application
submitted in this case is dated 4 April 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 Army on 13 June 1969 for a period of 3
years.  After completion of basic and advanced individual training, he was
awarded military occupational specialty 11B (Light Weapons Infantryman).
The applicant served in Vietnam for the period 5 January 1970 through 13
November 1970.

4.  Headquarters, 3d AIT Brigade Special Court-Martial Order Number 269,
dated 3 November 1969, convicted the applicant for absent without leave
(AWOL) for the period 15 September 1969 through 13 October 1969.  The
resultant sentence included confinement at hard labor for three months,
forfeiture of $45.00 per month for four months, and reduction to the rank
of private/pay grade E-1.  The approving authority suspended the hard labor
portion of the sentence.

5.  The applicant's service records reveal a disciplinary history that
includes his acceptance of nonjudicial punishment (NJP) under the
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on
the following three separate occasions for the offenses indicated:  on 8
December 1969, for failure to go to his appointed place of duty; on 7 June
1970, for possession of one Winston cigarette
pack which contained five repacked cigarettes that contained marihuana; and
on 12 August 1970, for failure to go to his appointed place of duty (2
specifications), and for AWOL (10 August 1970 through 12 August 1970).

6.  Item 44 (Time Lost under Section 972, Title 10, United States Code and
Subsequent to Normal Date ETS) of the applicant's DA Form 20 (Enlisted
Personnel Record) contains the following dates of AWOL: 15 September 1969
through 12 October 1969; 10 August 1970 through 12 August 1970; 27 July
1971 through 13 August 1971; 17 August 1971 through 24 August 1971; and
17 September 1971 through 4 March 1973.

7.  A DA Form 3836 (Notice of Return of US Army Member from Unauthorized
Absence), shows the applicant was AWOL on 17 September 1971 and surrendered
himself to military authorities on 5 March 1973.

8.  The applicant's service records contain a Personnel Control Facility
Interview Sheet, dated 14 March 1973, which shows the applicant stated that
the reason he had gone AWOL was due to problems with his wife.  The
applicant authenticated this form in his own hand.

9.  US Army Training Center and Fort Dix [New Jersey] Court-Martial
Chronology Sheet shows that charges were forwarded to the convening
authority or intermediate commander on 21 March 1973.

10.  Headquarters Command, US Army Training Center memorandum, dated
21 March 1973, shows that the courts martial charges against the applicant
were transmitted and initiated the recommendation for an administrative
discharge.

11.  The applicant's discharge processing documents are not contained in
the records available to the Board.

12.  Headquarters, US Army Personnel Center Special Orders Number 128,
dated 8 May 1973, discharged the applicant under the provisions of Army
Regulation 635-200, SPN 246 [Discharge for the Good of the Service,
paragraph 10-1] with an Undesirable Discharge Certificate.

13.  The applicant's DD Form 214 shows that he was discharged on 8 May
1973, under the provisions of paragraph 10-1 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 2 years, 3 months and 12 days of net active service and had
591 days of lost time.
14.  The applicant applied to the Army Discharge Review Board (ADRB) for
upgrade of his discharge.  On 3 May 1974, the ADRB considered his case and
voted unanimously to deny his request.  The ADRB granted the applicant a
personal appearance which was held on 25 May 1982.  On 9 June 1982, the
ADRB notified the applicant that the Board voted unanimously to deny his
second request.

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations) 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 undesirable discharge.

16.  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.

17.  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.

18.  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 Army Discharge Review Board (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 Army Board for Correction of Military Records
(ABCMR) should commence on the date of final action by the ADRB.  In
complying with this decision, the ABCMR 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 contends that his discharge should be upgraded.

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.

3.  Based on this record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  Additionally, his service is deemed unsatisfactory in
view of his extensive periods of AWOL.  Therefore, he is not entitled to
either a general or an honorable discharge.

4.  Accordingly, the type of discharge directed and the reason for
discharge are appropriate considering all the facts of the case.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 25 May 1982.  As a
result, the time for the applicant to file a request for correction or any
error or injustice to this Board expired on 24 May 1985.  However, 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

_MJF___  LDS____  ___MKP__  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.




                                       _M .K. Patterson_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050006980                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051110                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1973/05/08                              |
|DISCHARGE AUTHORITY     |AR 635-200, para 10-1                   |
|DISCHARGE REASON        |For the 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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