RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 July 2006
      DOCKET NUMBER:  AR20050014685


      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. John J. Wendland, Jr.         |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Donald L. Lewy                |     |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 under other than honorable
conditions (UOTHC) discharge be upgraded to a general discharge (GD).

2.  The applicant requests, in effect, a discharge under honorable
conditions.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation
from Active Duty) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 7 July 1977, the date of his discharge.  The application
submitted in this case is dated 23 September 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.  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.

3.  The applicant’s record shows he was inducted into the Army of the
United States and entered active duty on 17 June 1970.  Upon completion of
basic combat training and advanced individual training, the applicant was
awarded military occupational specialty (MOS) 70A.  The highest rank he
attained while serving on active duty was private/pay grade E-2.

4.  The applicant’s military service records show that he departed Fort
Polk, Louisiana, on 18 October 1970, en route to the Republic of Vietnam,
and went absent without leave (AWOL) from the Replacement Station, Fort
Lewis, Washington, on 5 November 1970.

5.  The applicant's military service records show that while in an AWOL
status, on 20 September 1971, the Defense Attaché Office, San Salvador,
advised the U.S. Army that the applicant had been arrested for marijuana
possession in San Salvador and was suspected of drug traffic activity.  The
applicant's military service record is silent from this point until 1 July
1977, when the Provost Marshall's Office, Fort Clayton, Panama, contacted
the Deserter Returnee Program regarding the applicant after it had been
contacted by the applicant concerning his possible return to military
control.

6.  The applicant remained in an AWOL/deserter status until on or about 6
July 1977 when he returned to military control at the Deserter Processing
Center, Fort Benjamin Harrison, Indiana.

7.  On 6 July 1977, the lieutenant colonel in command of the U.S. Army
Provisional Processing Center, Fort Benjamin Harrison, Indiana, notified
the applicant of his intent to recommend him for elimination from the
service under the provisions of Army Regulation 635-200 (Active Duty
Enlisted Administrative Separations), Chapter 15 (Misconduct - Desertion
and Absence Without Leave).  The commander also advised the applicant of
his rights, which included the right to consult with counsel; to present
his case before a board of officers; to submit statements on his behalf; to
be represented at any hearing by appointed Government counsel at no expense
or to retain a civilian attorney; to waive, in writing, these rights; and
to withdraw his waiver of his rights at any time prior to the date the
discharge authority directs or approves his discharge.

8.  On 6 July 1977, the applicant consulted with legal counsel and he was
advised by counsel on the basis for the contemplated action to discharge
him by reason of AWOL/desertion under the provisions of chapter 15 of Army
Regulation 635-200.  The applicant indicated that he understood the
possible effects of a discharge UOTHC, that as a result of the issuance of
such a discharge he may be deprived of many or all benefits administered by
the Veterans Administration, and that he may expect to encounter
substantial prejudice in civilian life if he was issued a general
discharge.  The applicant was also advised of the details of the Department
of Defense (DOD) Discharge Review Program (Special) and of his eligibility
to participate therein.

9.  On 6 July 1977, subsequent to receiving legal counsel, the applicant
voluntarily waived consideration of his case by an Administrative Discharge
Board, did not submit statements in his own behalf, and waived
representation by counsel.

10.  On 7 July 1977, the appropriate authority approved discharge of the
applicant, directed that he receive an UOTHC discharge, and that he be
reduced to the lowest enlisted grade.  Accordingly, the applicant was
discharged on 7 July 1977.  The separation document (i.e., DD Form 214)
prepared on the applicant confirms that at the time of his discharge he had
completed 4 months and
18 days of active military service, had accrued 589 days of time lost on
the period of enlistment under review, and had 1,845 days of time lost
after his expiration of term of service (ETS) date.

11.  On 22 July 1977, the DOD Discharge Review Board reviewed the
applicant's discharge and found that the applicant's discharge did not meet
the primary criteria of the DOD Discharge Review Program (Special) and
denied him relief.

12.  On 16 November 1977, the applicant applied to the ADRB requesting
upgrade of his UOTHC discharge to a GD.  On 24 January 1979, the ADRB
denied the applicant’s request for an upgrade to his discharge.  The ADRB
noted that in the 7 years and 1 month the applicant was on the Army rolls,
he was AWOL for 2,434 days.  The ADRB also noted that there was nothing in
the applicant's file, nor was anything submitted by the applicant, to
explain or mitigate his absence.  The ADRB found that the applicant’s
discharge was proper and equitable and that it accurately reflected his
overall record of service.

13.  On 1 August 1983, the applicant again applied to the ADRB requesting
upgrade of his UOTHC discharge to a GD.  On 11 January 1984, the ADRB
notified the applicant that his case had been reviewed previously by the
ADRB and, because no new evidence was submitted, he was ineligible for
further consideration unless he consented to make a personal appearance
before the Board.

14.  On 16 July 1984, the applicant reapplied to the ADRB requesting
upgrade of his UOTHC discharge to a GD, indicating his desire to appear at
a hearing.  However, the applicant failed to respond to a notification
letter for personal appearance before the ADRB.  On 9 October 1985, the
ADRB notified the applicant that, because he failed to respond to the
notification for personal appearance at the Board, his case was reviewed on
the records alone.  The ADRB concluded that the applicant's case had been
reviewed previously by the ADRB and he was ineligible for further
consideration by the ADRB.

15.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 15 of that regulation provides,
in pertinent part, that an individual may be considered for discharge when
it is determined by an administrative review of all facts that there is
substantial evidence to support a determination of desertion or absence
without leave; the unauthorized absence was continuous for 1 year or
longer; retention in the Service is precluded by regulations or is not
considered desirable or in the best interest of the United States; and
trial by court-martial on a charge of desertion or AWOL is waived or deemed
inadvisable by the general court-martial convening authority.  This
document also indicates that a discharge UOTHC is normally considered
appropriate.

16.  Army Regulation 635-200, paragraph 1-9 (Characterizing a member's
service), in effect at the time, 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.

17.  Army Regulation 635-200, paragraph 1-9, also provides that an
undesirable discharge is an administrative separation from the Service
under conditions other than honorable and, in pertinent part, provides that
it may be issued for misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his under other than honorable
conditions discharge should be upgraded to a general, under honorable
conditions discharge was carefully considered.  However, the applicant
provides insufficient documentary evidence to support his claim.

2.  The applicant’s service record shows that he was AWOL from the Army for
589 days and, in the 7 years and nearly 1 month the applicant was on the
Army rolls, he was AWOL for 2,434 days (i.e., approximately 6 years and 9
months).  Therefore, the evidence of record shows that due consideration
was given to the applicant's overall service at the time he was discharged
from military service.

3.  The evidence of record shows that the applicant was properly and
equitably discharged in accordance with the regulations in effect at that
time, all requirements of law and regulations were met, and the rights of
the applicant were fully protected throughout the separation process.
Further, the applicant’s discharge accurately reflects his overall record
of undistinguished service.

4.  The evidence of record also shows that the Army Discharge Review Board
reviewed the applicant's discharge and found it to be proper and equitable.
5.  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.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 9 October 1985.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 8 October 1988.  The
applicant did not file within the ABCMR's 3-year statute of limitations and
has not provided 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

__JEV___  __BJE___  __DLL__  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.




                                  ___   James E. Vick_______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050014685                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060719                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19770707                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |DFR                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.9231.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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