RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           19 January 2006
      DOCKET NUMBER:  AR20050008709


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Mr. William Crain                 |     |Member               |
|     |Mr. Gerald Purcell                |     |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.

2.  The applicant states he was not in his right mind after he returned
from Vietnam.  He states, in effect, that he went absent without leave
(AWOL) because of the bad memories of Vietnam and marital problems.  He
also contends that he is in very poor health and in need of a lot of
medical help.

3.  The applicant provides no additional evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 19 December 1973.  The application submitted in this case is
dated 1 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 limitation 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 on 18 March 1968 for a period of 3 years.  He
successfully completed basic combat training and advanced individual
training in military occupational specialty 11C (infantry indirect fire
crewman).

4.  The applicant arrived in Vietnam on or about 1 October 1968 and
departed on 18 August 1969.

5.  On 26 February 1970, in accordance with his pleas, the applicant was
convicted by a summary court-martial of two specifications of being AWOL
(from 15 December 1969 to 22 December 1969 and from 15 January 1970 to
9 February 1970).  He was sentenced to be reduced to E-1, confined at hard
labor for 30 days and to forfeit $82 for one month.  On 3 March 1970, the
convening authority approved only so much of the sentence as provided for
reduction to E-1, restriction, and extra duty.




6.  The applicant went AWOL on 25 May 1970 and was apprehended on
28 November 1973 and returned to military control.  On 7 December 1973,
charges were preferred against the applicant for the AWOL charge.  Trial by
general court-martial was recommended.

7.  On 10 December 1973, after consulting with counsel, the applicant
submitted a request for discharge for the good of the service under the
provisions of Army Regulation 635-200, chapter 10.  He indicated in his
request that he understood that he could be discharged under other than
honorable conditions and furnished an Undesirable Discharge Certificate,
that he might be deprived of many or all Army benefits, that he might be
ineligible for many or all benefits administered by the Veterans
Administration and that he might be deprived of his rights and benefits as
a veteran under both Federal and State law.  He also acknowledged that he
might encounter substantial prejudice in civilian life because of an
undesirable discharge.  The applicant elected to submit a statement in his
own behalf.  In summary, he stated he went AWOL for personal and marital
problems.
8.  On 17 December 1973, the separation authority approved the applicant’s
request for discharge and directed that he be issued an undesirable
discharge.

9.  Accordingly, the applicant was discharged with an undesirable discharge
on
19 December 1973 under the provisions of Army Regulation 635-200, chapter
10, for the good of the service.  He had served 1 year, 11 months and 24
days of total active service and had 1378 days of lost time due to AWOL and
confinement.

10.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge within its 15-year statute of
limitations.

11.  Army Regulation 635-200, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  Chapter 10 of that
regulation provided, in pertinent part, that a member who had committed an
offense or offenses for which the authorized punishment included a punitive
discharge might at any time after the charges had been preferred, submit a
request for discharge for the good of the service in lieu of trial by court-
martial.  At the time, an undesirable discharge was normally considered
appropriate.

12.  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.

13.  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.  A discharge is not upgraded for the purpose of obtaining Department of
Veterans Affairs benefits.

2.  The applicant’s record of service included one summary court-martial
conviction and 1378 days of lost time.  As a result, his record of service
was not satisfactory and did not meet the standards of acceptable conduct
and performance of duty for Army personnel.  Therefore, the applicant's
record of service is insufficiently meritorious to warrant a general
discharge or honorable discharge.

3.  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.

4.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.

5.  Records show the applicant should have discovered the alleged injustice
now under consideration on 19 December 1973; therefore, the time for the
applicant to file a request for correction of any injustice expired on 18
December 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

JI______  ___WC___  _GP____  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 Infante________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050008709                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060119                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19731219                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 10                   |
|DISCHARGE REASON        |For the good of the service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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