RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 January 2006
      DOCKET NUMBER:  AR20050008583


      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. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Shirley Powell                |     |Chairperson          |
|     |Mr. Chester Damian                |     |Member               |
|     |Ms. Karmin Jenkins                |     |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 that he does not believe that his discharge was in
error or unjust and in effect, he came back from Vietnam totally unclear
and has been this way until recently.

3.  The applicant provides no documents in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 9 December 1971.  The application submitted in this case is
dated 13 June 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 initially enlisted in the Regular Army on 10 January
1969.  He completed basic combat training at Fort Lewis, Washington.  In
May 1969, he was reassigned to Fort Monmouth, New Jersey for advanced
individual training (AIT) in military occupational specialty (MOS) 26V
(Strategic Microwave System Repairman).  He was reassigned to another
company at Fort Monmouth, New Jersey, for training in MOS 84C (Motion
Picture Photographer).  He was later reassigned to Fort Bliss, Texas for
training in MOS 16D (Hawk Missile Crewman).  Upon successful completion of
AIT, he was awarded MOS 16D.  The applicant was assigned to Battery B, 6th
Battalion, 562nd Artillery in Germany on 19 November 1969 as a hawk missile
crewman.

4.  The applicant was promoted to private first class (PFC) on 19 December
1969.  He was honorably discharged from active duty on 19 December 1969 for
the purpose of immediate reenlistment.

5.  The applicant reenlisted on 20 December 1969 for a period of three
years.  (His DD Form 214 for the period ending 9 December 1971 erroneously
shows he reenlisted on 18 December 1970).  He departed Germany on 6 March
1970.  He was reassigned to Vietnam on 15 April 1970 as a light truck
driver and as an assistant machine gunner.  He departed Vietnam on 25 March
1971.

6.  On 17 May 1971, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice for being absent from his unit
on 7 May 1971 and 10 May 1971.  His punishment consisted of a forfeiture of
$100.00 pay per month for one month, performance of extra duty for 30 days,
and a reduction to private E-2.

7.  On 24 November 1971, charges were preferred against the applicant for
being absent without leave (AWOL) from 4 June 1971 through 10 November
1971.

8.  On 21 November 1971, the applicant consulted with legal counsel and
voluntarily requested discharge for the good of the service under the
provisions of Army Regulation 635-200, chapter 10.  In doing so, he
admitted guilt to the offense charged and acknowledged that he might
encounter substantial prejudice in civilian life and that he might be
ineligible for many or all Army benefits administered by the Veterans
Affairs if an undesirable discharge was issued.  He submitted statements in
his own behalf.

9.  In support of his chapter 10 proceedings, the applicant submitted a
brief description of his past military service.  He stated, in effect, that
during his first period of service, he was profiled for five weeks for
bronchial pneumonia.  He was sent to Fort Monroe, Virginia for training in
MOS 26V and was later assigned to another company for training as a motion
picture photographer in MOS 84C.  During this period, he was charged with
being AWOL.  He was reassigned to Fort Bliss, Texas for training in MOS 16F
and received an Article 15 for leaving his wall locker unsecured.  Upon
completion of training, he was assigned to a Hawk missile base in Germany.
While in Germany, he was informed that his cousin was killed in Vietnam so
he reenlisted for assignment in Vietnam to get revenge. He also stated he
arrived in Vietnam in April 1970 in the rank of PFC.  He states that he
caught hepatitis while in Vietnam and was in the hospital for one month.
He left Vietnam in March 1971 and was reassigned to Fort Bliss, Texas where
he received another Article 15 for being AWOL.  He stated he went AWOL
because he could not take the frustrations and stress.  He stated he was a
PFC for 18 months which was a little too long.  He felt that now he cannot
benefit the Army in any way.

10.  His DA Form 20 (Enlisted Qualification Record) shows a period of pre-
trial confinement from 12 November 1971 through 9 December 1971.

11.  On 10 (sic) December 1971, the separation authority approved the
discharge under the provisions of Army Regulation 635-200, chapter 10 with
issuance of an Undesirable Discharge Certificate.

12.  On 9 December 1971, the applicant was discharged from active duty
under the provisions of Army Regulation 635-200, chapter 10 for the good of
the service with an undesirable discharge.  He had completed 6 months and
14 days of active military service with 160 days of lost time during the
period under review and a total of 1 year, 5 months, and 22 days total
active military service.  His DD Form 214 for the period ending 9 December
1971 shows "188" days of lost time which includes his period of pre-trial
confinement.

13.  On 30 March 1973, the Army Discharge Review Board (ADRB) denied the
applicant's request for an upgrade of his discharge to general.

14.  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 undesirable discharge.

15.  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.

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, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.

17.  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's voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, for the good of the service, to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.  There is no indication that the
request was made under coercion or duress.

2.  The applicant's record of service shows he received one Article 15
during the period under review for being absent from his unit on two
separate occasions.  He was charged for being AWOL for a total of 160 days.
 His record of service was not satisfactory and did not meet the standards
of acceptable conduct and performance of duty for Army personnel for an
upgrade to a general discharge.

3.  There is no evidence of record which shows the type of discharge issued
to the applicant was in error or unjust.

4.   Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 March 1973, the date of review of
the ADRB; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 29 March 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

SP______  CD______  KJ______  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.




                                  Shirley Powell________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050008583                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060118                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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