RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 August 2006
      DOCKET NUMBER:  AR20060000408


      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. Paul M. Smith                 |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Mr. Ronald D. Gant                |     |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 27 June 1972 discharge be upgraded.

2.  The applicant states, in effect, he needs his third discharge upgraded
to allow him to receive Department of Veterans Affairs benefits for medical
conditions that had their onset while he was on active duty.

3.  The applicant provides a letter of support from E____ H. C____ and
copies of three DD Forms 214 (Armed Forces of the United States Report of
Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 27 June 1972, the date of his discharge.  The
application, received on 7 January 2006, is undated.

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 with a two year
active duty  service obligation on 10 February 1965, completed training,
and was awarded the military occupational specialty (MOS) 67K (Multi-Engine
Airplane Repairman).

4.  The applicant served in Korea from 6 October 1965 through 5 July 1966,
7 months and 21 days.  During this period he was honorably discharged for
the convenience of the government for the purpose of immediate reenlistment
on 27 May 1966.

5.  The DD Form 214, issued at that time, shows he had 1 year, 3 months,
and 17 days of creditable service with no time lost.  It lists his awards
as the Sharpshooter Marksmanship Qualification Badge with Rifle Bar and the
Marksman Marksmanship Qualification Badge with Rifle Bar.

6.  During the applicant’s second period of service he completed his tour
in Korea and was promoted to specialist five (E-5) on 20 March 1967.  He
served in Vietnam from 26 August 1966 through 19 August 1967 and from
31 December 1968 through 2 December 1969.

7.  On 13 February 1970 he was honorably discharged for the purpose of
immediate reenlistment.  The DD Form 214 issued at that time shows he had a
total of 5 years and 4 days of creditable service with no time lost.
During this period of service the applicant was awarded the Good Conduct
Medal, the National Defense Service Medal, the Vietnam Service Medal with
three bronze service stars, the Republic of Vietnam Campaign Medal with
“1960” Device, and the Aircraft Crewmember Badge.

8.   The record shows that during this period he was also awarded the Air
Medal for meritorious achievement and served during six campaign periods.

9.  The applicant reenlisted on 14 February 1970.  The record contains
conflicting information as to when the applicant went AWOL (absent without
leave).  Several documents indicate it was 7 March 1971, whereas others
indicate 7 March 1972.

10.  The charge sheet indicates he went AWOL on 7 March 1971 and remained
absent until 25 May 1972.  He stated at the time of his return that he went
AWOL when he received orders for a third tour in Vietnam.

11.  On 9 June 1972, 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.

12.  The discharge authority approved the request for discharge under Army
Regulation 635-200, chapter 10.  He directed the applicant be reduced to
the lowest enlisted grade and receive a UD.

13.  The applicant was discharged for the good of the service in lieu of
trial by court-martial on 27 June 1972.  He had 1 year, 1 month, and 25
days of creditable service with 446 days of lost time during his last
enlistment.
14.  There is no indication the applicant applied to the Army Discharge
Review Board within its 15-year statute of limitation.

15.  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.

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

17.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the 3 year limit on filing to the
ABCMR should commence on the date of final action by the ADRB.  In
complying with this decision, the ABCMR has adopted the broader policy of
calculating the 3-year time limit from the date of exhaustion in any case
where a lower level administrative remedy is utilized.

18.  Title 38, United States Code, sections 310 and 331, permit the VA to
award compensation for a medical condition which was incurred in or
aggravated by active military service.  The VA has the authority to
determine if an applicant was eligible for a complete and unconditional
separation for the purposes of VA benefits.

DISCUSSION AND CONCLUSIONS:

1.  The discharge proceedings were conducted in accordance with law and
regulations applicable at the time.  The character of the discharge is
commensurate with the applicant's record of military service for this
period.


2.  While the applicant served honorably for over six years including a
tour in Korea and two tours in Vietnam, his going AWOL instead of retuning
to a combat theater of operations is extremely serious and precludes more
favorable characterization of his third period of 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 27 June 1972; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 26 June 1975.  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

__RDG__  _PMS___  _LMD____  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.




                                  ___Paul M. Smith      _____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000408                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060829                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19720627                                |
|DISCHARGE AUTHORITY     |AR 635-200 CH 10. . . . .               |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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