RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 August 2006
      DOCKET NUMBER:  AR20050018128


      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. G. E. Vandenberg              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. Conrad V. Meyer               |     |Member               |
|     |Ms. Yolanda Maldonado             |     |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 discharge be upgraded.

2.  The applicant states, in effect, that he needs an upgrade of his
discharge to receive medical care for medical problems that are related to
his period of service.  He believes that he was not mentally sound when he
went home to get married after his period of service in Vietnam.  He says
that he regrets not returning to Vietnam but believes that, if he had, he
would not have returned alive.

3.  The applicant provides no supporting documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 26 October 1970, the date of his discharge.  The
application submitted in this case is dated 14 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 records show the applicant enlisted in the Delaware Army National
Guard (DEARNG) and was ordered to active duty for training (ACDUTRA) for
six months on 3 June 1963.

4.  He completed training and was released back to the DEARNG where he
continued to serve until he was called to active duty on 1 December 1968.

5.  The applicant was assigned duties in Vietnam where he served for
4 months and 21 days.

6.  The applicant was absent without leave (AWOL) for the periods 30 May
1969 through 16 November 1969 and 15 December 1969 through 29 September
1970, a total of 459 days.

7.  Although the discharge packet is not of record, the evidence of record
shows that the applicant was discharged under the provisions of Chapter 10,
AR 635-200, for the good of the service in lieu of trial by court-martial
on 26 October 1970.

8.  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.

9.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth
the maximum punishments for offenses chargeable under the UCMJ.  A punitive
discharge is authorized for offenses under Article 86, for periods of AWOL
in excess of 30 days.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the
discharge proceedings were conducted in accordance with law and regulations
applicable at the time.  The character of the discharge is commensurate
with his overall record.

2.  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.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 October 1970; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 25 October 1973.  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

__CVM __  __YM___  _KAN___  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.




                                  _  _Kathleen A. Newman____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050018128                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060801                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |  . . . . .                             |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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