RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 August 2006
      DOCKET NUMBER:  AR20050016005


      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. Dean L. Turnbull              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. Dean A. Camarella             |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |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 his undesirable discharge be upgraded to an
honorable discharge.

2.  The applicant states, in effect, that he was only married for 2 months
when he received a Dear John letter from his spouse; therefore, he had to
go home to see his spouse.  The applicant further states that since it has
been over 34 years he is now hoping for a better discharge.

3.  The applicant does not provide any additional documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 7 January 1970, the date of his discharge from active
duty.  The application submitted in this case is dated 23 October 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’s record shows he was inducted into the Army of the
United States and entered active duty on 4 December 1967.  He attended
basic combat training and advanced individual training, and was awarded
military occupational specialty 36K10 (Tactical Wire Operations
Specialist).

4.  Record shows that the applicant did receive a gun shot wound to his leg
while he was on Christmas leave on 1 January 1968.  On 16 January 1968, the
applicant accepted nonjudicial punishment (NJP) under the provisions of
Article 15, Uniform Code of Military Justice (UCMJ), for disrespect and
disobeying a lawful order while he was a patient at the U.S. Naval
Hospital, St. Albans, Long Island, New York.

5.  Record shows that upon completion of advanced individual training the
applicant was enroute to the Republic of Vietnam, and while in transit he
departed absent without leave (AWOL) on 16 July 1968 and remained so until
 
16 August 1968.
6.  Item 44 (Time Lost) of the DA Form 20 (Enlisted Qualification Record)
shows the applicant was AWOL for the period 16 July 1968 to 16 August 1968;
he was AWOL for the period 12 September 1968 to 28 April 1969; he was
confined for the period 29 April 1969 to 27 August 1969; he was AWOL for
the period
29 August 1969 to 4 November 1969; and he was confined for the period
5 November 1969 to 6 January 1970.

7.  On 10 November 1969, charges were preferred against the applicant for
being AWOL from on or about 29 August 1969 to on or about 5 November 1969.

8.  The applicant's service records contain Standard Form 88 (Report of
Medical Examination), dated 25 November 1969, wherein the applicant was
found to be normal psychiatrically and was determined medically qualified
for separation.

9.  On 15 December 1969, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
maximum permissible punishment authorized under the UCMJ, the possible
effects of an undesirable discharge, and of the procedures and rights that
were available to him.  On 15 December 1969, the applicant voluntarily
requested discharge for the good of the service, in lieu of trial by court-
martial.

10.  In his request for discharge, the applicant indicated that he
understood that by requesting discharge, he was admitting guilt to the
charge against him, or of a lesser included offense, that also authorized
the imposition of a bad conduct or dishonorable discharge.  He further
acknowledged he understood that if his discharge request was approved, he
could 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, and that he could be deprived of his rights and benefits as a
veteran under both Federal and State law.  He also acknowledged that he
understood that he may expect to encounter substantial prejudice in
civilian life by reason of an undesirable discharge.

11.  On 24 December 1969, the separation authority approved the applicant’s
request for discharge and directed that he receive an undesirable
discharge.  On 7Janaury 1970, the applicant was discharged.  The applicant
accrued 510 days of time lost due to AWOL and confinement.

12.  The applicant applied to the Army Discharge Review Board (ADRB) on
27 March 1979.

13.  On 24 October 1980, the ADRB noted, in effect, that the applicant was
properly discharged in accordance with Army Regulation 635-200 (Personnel
Separation), Chapter 10.  The applicant had a series of AWOL offenses and
confinements which were not mitigated or extenuated by anything in the
record or submitted with his appeal.  On that basis the applicant’s request
for upgrade of his discharge was denied.

14  Army Regulation 635-200 Personnel 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.

15.  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.

16.  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 requested that his undesirable discharge be upgraded to
honorable discharge.

2.  Evidence shows that the applicant went AWOL while he was on Christmas
leave.  Evidence further shows that the applicant departed on AWOL while in
transit to the Republic of Vietnam.  There is no evidence that shows the
direct cause for his series of AWOL was the Dear John letter he claims he
received from his spouse.  Therefore, the applicant has failed to submit
substantiating evidence to support his request.

3.  The applicant's record shows that he accrued 510 days of time lost due
to AWOL and confinement.
4.  Based on his record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  The extensive length of his AWOL renders his service
unsatisfactory. Therefore, he is not entitled to either an honorable or a
general discharge.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 24 October 1980.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 23 October 1983.  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

___rtd___  ___fmn__  ____dac_  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.




                                  _______Richard T. Dunbar________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016005                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060817                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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