RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 August 2006
      DOCKET NUMBER:  AR20050018207


      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:

|     |Mr. Curtis L. Greenway            |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Ms. Peguine M. Taylor             |     |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 (UD) be upgraded
to honorable.

2.  The applicant states, in effect, that he warrants an upgrade of his
discharge based on his period of active duty and time served in Vietnam.

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 4 December 1970, the date of his discharge.  The
application submitted in this case is dated 16 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 entered active duty on 3 January 1968,
completed training, and was awarded the military occupational specialty
(MOS) 12B (Combat Construction Specialist).

4.  The applicant served in the Republic of Vietnam with Company B, 14th
Combat Engineer Battalion from 19 June 1968 through 8 June 1969.  The
applicant did not receive any personal awards or decorations during his
period of service in the Republic of Vietnam.

5.  On 31 July 1969 the applicant received nonjudicial punishment (NJP) for
failure to go to his appointed place of duty on 29 July 1969.

6.  A summary court-martial found the applicant guilty of absence without
leave (AWOL) for the period 21 December 1969 through 19 January 1970.  The
court-martial was adjudicated on 23 March 1970 but not approved until 10
May 1970.

7.  The applicant was AWOL for the period 25 through 28 April 1970.  There
is no documentation of any disciplinary actions related to this period of
AWOL.

8.  The applicant received NJP on 8 May 1970 for failure to go to his
appointed place of duty on 28 April 1970 and being AWOL 1 through 3 May
1970.

9.  A 16 May 1970 DA Form 268 (Report of Suspension of Favorable Personnel
Actions) indicates the applicant was AWOL on 16 May 1970.  Hand written
additions to the form indicate he was AWOL for the period 16 through 28 May
1970.

10.  The applicant received NJP on 14 July 1970 for failure to go to his
appointed place of duty on 8 July 1970 and 9 July 1970.

11.  The applicant was AWOL from 20 July 1970 through 22 September 1970.
Upon his return general court-martial charges were preferred for this
period of AWOL.

12.  On 9 October 1970, after consulting with counsel and being advised of
his rights and options, the applicant submitted a formal request, under the
provisions of Army Regulation 635-200, chapter 10, for discharge for the
good of the service (in lieu of trial by court-martial for an offense
punishable by a bad conduct or dishonorable discharge).  He acknowledged
that if the request was accepted that he could receive a discharge under
other than honorable conditions and be furnished an undesirable discharge
(UD) Certificate.  He acknowledged that such a discharge would deprive him
of many or all of his benefits as a veteran, and that he could expect to
experience substantial prejudice in civilian life if he received a UD.

13.  The discharge authority accepted the applicant’s request for
discharge, directed the applicant be reduced to the lowest enlisted pay
grade, and that he be issued an undesirable discharge.

14.  The applicant was discharged on 4 December 1970 under the provisions
of Army Regulation 635-200, chapter 10 with a UD.  He had 2 years, 7
months, and 17 days of creditable service with 112 days of lost time.

15.  There is no indication the applicant applied to the Army Discharge
Review Board within its 15-year statute of limitations.


16.  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.

17.  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.  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.  There is no indication that the
request was made under coercion or duress.

2.  The applicant’s service in the Republic of Vietnam is noted; however,
it was not so exceptionally meritorious as to outweigh the offenses that
resulted in his discharge.

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 4 December 1970; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 3 December 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

__CLG___  _JBG___  __PMT__  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.




                                  _      Curtis L. Greenway_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050018207                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060818                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19701204                                |
|DISCHARGE AUTHORITY     |AR 635-200. . . . .                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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