RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            25 MAY 2006
      DOCKET NUMBER:   AR20050015532


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William Blakely               |     |Chairperson          |
|     |Mr. Robert Osborn                 |     |Member               |
|     |Mr. Jerome Pionk                  |     |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 be upgraded to a
general discharge.

2.  The applicant states that the Amnesty Law for draft dodgers gives a
break to undesirables under chapter 10.  However, he was in jail during the
initial effective dates of the program and was passed over for amnesty.

3.  The applicant provides no additional documents with his application,
which he submits from the Mule Creek Sate Prison in California.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 3 December 1971.  The application submitted in this case is
dated 14 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.  He enlisted in Los Angeles, California, on 4 December 1970 for a period
of 3 years and training as a combat engineer.  He was transferred to Fort
Ord, California, to undergo his basic combat training (BCT).

4.  On 2 February 1971, after only 4 weeks of BCT, he went absent without
leave (AWOL) and remained absent until he was apprehended by civil
authorities on 27 April 1971 and was returned to military control on 23
October 1971.

5.  On 28 October 1971, charges were preferred against the applicant for
being AWOL from 2 February to 23 October 1971.

6.  On 3 November 1971, after consulting with his defense counsel, the
applicant submitted a request for discharge for the good of the service,
under the provisions of Army Regulation 635-200, chapter 10, in lieu of
trial by             court-martial.  In his request he indicated that he
was making the request of his own free will, without coercion from anyone
and that he was aware of the implications attached to his request.  He
acknowledged that he understood that he could receive a discharge under
other than honorable conditions and that he might be deprived of all
benefits as a result of such a discharge.  He also elected to submit a
statement in his own behalf, whereas he stated that he wanted out under
chapter 10 because he was a fraudulent enlistee, that the Army was not
doing him any good and he was not doing the Army any good.  He also stated
that it was just a lot of unnecessary trouble and a waste of time for
everyone if he stayed him.  He further stated that he was non-restorable
and would continue to go AWOL until he got out.

7.  His company commander recommended approval of his request and stated
that the applicant showed no remorse for his lengthy AWOL, that he was a
malcontent who had no place in the military, that by his own admission he
had an extensive juvenile record under several aliases, and that he could
see no reason to allow him to remain in the Army.  All commanders in his
chain of command recommended that he be issued an Undesirable Discharge
Certificate.

8.  The appropriate authority (a major general) approved the applicant’s
request on 2 December 1971 and directed that he be furnished an Undesirable
Discharge Certificate.

9.  Accordingly, he was discharged under other than honorable conditions on
3 December 1971, under the provisions of Army Regulation 635-200, chapter
10, in lieu of trial by court-martial.  He had served 3 months and 27 days
of total active service and had 263 days of lost time due to AWOL and
confinement by civil and military authorities.

10.  There is no evidence in the available records to show that he ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that board's 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge
for the good of the service in lieu of trial by court-martial.  A condition
of submitting such a request is that the individual concerned must indicate
that they are submitting the request of their own free will, without
coercion from anyone and that they have been briefed and understand the
consequences of such a request as well as the discharge they might receive.
 A discharge under other than honorable conditions is normally considered
appropriate.

12.  Presidential Proclamation 4313, issued on 16 September 1974, affected
three groups of individuals.  These groups were fugitives from justice who
were draft evaders; members of the Armed Forces who were in an unauthorized
absence status; and prior members of the Armed Forces who had been
discharged with a punitive discharge for violations of Articles 85, 86, or
87 of the Uniform Code of Military Justice.  The last group could apply to
a Presidential Clemency Board which was made up of individuals appointed by
the President (members were civilians, retired military and members of the
Reserve components) who would make a determination regarding the
performance of alternate service.  That board was authorized to award a
Clemency Discharge without the performance of alternate service (excusal
from alternate service).  The dates of eligibility for consideration under
this proclamation for those already discharged from the military service
were 4 August 1964 to 28 March 1973, inclusive.  Alternate service was to
be performed under the supervision of the Selective Service System.  When
the period of alternate service was completed satisfactorily, the Selective
Service System notified the individual’s former military service.  The
military services issued the actual Clemency Discharges.  The Clemency
Discharge is a neutral discharge, issued neither under “honorable
conditions” nor under “other than honorable conditions.”  It is to be
considered as ranking between an undesirable discharge and a general
discharge.  A Clemency Discharge does not affect the underlying discharge
and does not entitle the individual to any benefits administered by the
Department of Veterans Affairs (formerly Veterans Administration).  While
there is no change in benefit status per se, a recipient may apply to the
Department of Veterans Affairs for benefits.

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.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a
trial by court-martial, he voluntarily requested a discharge for the good
of the service in hopes of avoiding a punitive discharge and having a
felony conviction on his records.

4.  The applicant's contentions and his overall record of service have been
considered.  However, they are not sufficiently mitigating to warrant
relief when compared to his undistinguished record of service and his
extensive unauthorized absence during such a short period of time.  His
service simply does not rise to the level of a general discharge.

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 should have discovered the alleged error or
injustice now under consideration on 3 December 1971; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 2 December 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

___WB__  ___RO __  ___JP___  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.




                                  ______William Blakely______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050015532                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060525                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1971/12/03                              |
|DISCHARGE AUTHORITY     |AR635-200/CH10 . . . . .                |
|DISCHARGE REASON        |GD OF SVC                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |689/A70.00                              |
|1.144.7000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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