RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 September 2006
      DOCKET NUMBER:  AR20050018043


      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. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Ms. Maribeth Love                 |     |Member               |
|     |Mr. Thomas M. Ray                 |     |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 to an
honorable discharge.

2.  The applicant states, in effect, that he was not informed by counsel as
to the type of discharge he would receive nor was he given any other advice
by appointed counsel.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 29 October 1971, the date he was separated
from active duty.  The application submitted in this case is dated 21
December 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 reenlisted in the Regular Army and
entered active duty on 24 April 1968, for a period of 3 years after serving
8 months and 13 days of prior active duty service.  He was trained in,
awarded and served in military occupational specialty (MOS) 13A10 (Field
Artillery Basic).  The highest grade attained was pay grade E-4.

4. Between 18 June 1970 and 14 May 1971, the applicant accepted three
nonjudicial punishments for three incidents of being absent without leave
(AWOL) from 1 to 22 March 1971, from 23 March to 16 April 1971 and from
10 to 13 May 1971.  His punishments included forfeitures, restrictions and
extra duties.

5.  On 22 September 1971, court-martial charges were preferred against the
applicant for being AWOL from 2 June to 26 August 1971 and from 9 to
14 September 1971.

6.  On 6 October 1971, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation action, the effects of
an undesirable discharge and of the rights available to him.  The applicant
voluntarily requested discharge for the good of the service, in lieu of
trial by court-martial.  In his request for discharge, he acknowledged that
if his discharge request was approved, he could be deprived of many or all
Army benefits administered by the Department of Veterans Affairs (VA), and
that he could be deprived of his rights and benefits as a veteran under
both Federal and State law.  He further indicated that he understood that
he could encounter substantial prejudice in civilian life by reason of an
undesirable discharge.

7.  On 12 October 1971, a medical examination found the applicant fit for
retention or separation from service.

8.  On 22 October 1971, the separation authority approved the applicant’s
request for discharge and directed that he receive an Undesirable Discharge
Certificate.  On 29 October 1971, the applicant was discharged accordingly.
 The separation document (DD Form 214) he was issued confirms he completed
2 years, 11 months and 27 days of creditable active military service and
accrued 191 days of time lost due to AWOL.  He was awarded the Vietnam
Service Medal, the Republic of Vietnam Campaign Medal with Device 60, and
the Army Commendation Medal.

9.  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.
An undesirable discharge is normally considered appropriate.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention was carefully considered and found to have
no merit in this case.  There is no evidence nor has the applicant provided
any evidence to show that he asked for help at any time before deciding to
go AWOL. Therefore, given the circumstances in this case, there is
insufficient evidence to support this claim.
2.  The evidence of record confirms that the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, the applicant voluntarily
requested discharge from the Army in lieu of trial by court-martial.  All
requirements of law and regulation were met, the rights of the applicant
were fully protected throughout the separation process and his discharge
accurately reflects his overall record of short and undistinguished
service.

3.  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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 29 October 1971; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
28 October 1974.  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

___JEA__  __ML ___  __TMR__  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. Anderholm___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/09/19                              |
|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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