RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         15 August 2006
      DOCKET NUMBER:  AR20060001058


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. John G. Heck                  |     |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 undesirable discharge (UD)
be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he was ridiculed for being
overweight while in basic training, and after going absent without leave
(AWOL) for three days, he returned of his own free will and stuck it out.
He claims that he was assigned to the Republic of Vietnam (RVN), and when
he arrived he was assigned to a hotel in Saigon while waiting to be
transported to his unit.  He states that after three weeks of waiting, he
went to the sergeant in charge and asked him when he would be transported
to his unit.  He claims the sergeant told him he should have been sent
weeks ago and that he had been reported AWOL.  The sergeant then tore up
his file in front of him and said he never saw him.  This incident freaked
him out, and as a result he falsified an emergency leave and left the RVN
for the United States.

3.  The applicant states that after some time, he turned himself in and
suffered the consequences, which included a reduction in rank and a fine,
and he returned to the RVN and completed his tour.  He states that upon his
return to the United States he was fed up with the military and asked his
unit commander what he could do to get out of the Army.  He claims his unit
commander told him the only way was for him to go AWOL long enough that
they would kick him out, and that after a few years he could get his
discharge upgraded.  This is what he did, and he was discharged for the
good of the service as a result.  He concludes by indicating that he loves
his country, and that he has been a good citizen and raised five children,
two of which have been Soldiers, and he feels he would like to straighten
this out.

4.  The applicant provides no additional documentary evidence in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 9 November 1971, the date of his separation from active
duty.  The application submitted in this case is dated 10 January 2006.

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 that he enlisted in the Regular Army and
entered active duty on 8 April 1968.  He was trained in, awarded, and
served in military occupational specialty (MOS) 63J (Quartermaster Light
Equipment Repairman), and the highest rank he attained while serving on
active duty was specialist four (SP4).

4.  The applicant's record shows he served in the RVN from 20 April 1968
through 20 August 1968 and again from 1 February 1970 through 20 December
1970.  It also shows that during his active duty tenure, he earned the
National Defense Service Medal, RVN Campaign Medal, Vietnam Service Medal,
Sharpshooter Qualification Badge with Rifle Bar.  The record documents no
acts of valor, significant achievement or service warranting special
recognition.

5.  The applicant's disciplinary history includes his acceptance of non-
judicial punishment under the provisions of Article 15 of the Uniform Code
of Military Justice (UCMJ) on the following three separate occasions for
the offenses indicted:  8 August 1966, for disobeying a lawful order; 19
August 1966, for being AWOL (3 days); and 5 August 1970, for failing to go
to his appointed place of duty.

6.  On 9 May 1969, a special court-martial (SPCM) found the applicant
guilty of violating Article 86 of the UCMJ by being AWOL from on or about 7
January through on or about 21 April 1969.  The resultant sentence was a
reduction to private first class and a forfeiture of $1.00 per month for 6
months.

7.  On 13 August 1971, a Charge Sheet (DD Form 458) was prepared preferring
a court-martial charge against the applicant for violating Article 86 of
the UCMJ by being AWOL from on or about 5 July 1970 through on or about 4
October 1971.

8.  On 28 October 1981, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
effects of an UD and of the rights available to him.  Subsequent to
receiving this legal counsel, the applicant voluntarily requested discharge
for the good of the service, in lieu of trial by court-martial.

9.  In his request for discharge, the applicant acknowledged he understood
that if his discharge request was approved, he could be deprived of many or
all Army benefits, that he could be ineligible for many or all 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 UD.

10.  On 5 November 1971, the separation authority approved the applicant's
request for discharge, and he directed the applicant be discharged under
the provisions of chapter 10, Army Regulation 635-200, and that he receive
an UD.  On 9 November 1971, the applicant was discharged accordingly.

11.  The DD Form 214 issued to the applicant upon his separation shows he
completed a total of 4 years, 5 months and 10 days of creditable active
military service, and that he accrued a total of 329 days of time lost due
to AWOL.

12.  On 5 December 1973, the Army Discharge Review Board (ADRB), after
carefully considering the applicant's overall record of service, and the
issues he raised, denied the applicant's petition to upgrade his discharge.

13.  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 UD.

14.  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 Army Board for Correction of Military Records
(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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his discharge should be upgraded
because he was treated unfairly based on weight control problems, and
because of his excellent post service conduct, were carefully considered.
However, these factors are not sufficiently mitigating to warrant an
upgrade of his discharge.

2.  The evidence of record confirms the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, he voluntarily requested
discharge in lieu of trial by court-martial.  All requirements of law and
regulation were met and that the rights of the applicant were fully
protected throughout the separation process. Further, the applicant’s
discharge accurately reflects his overall record of 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 exhausted his administrative remedies when
his case was last reviewed by the ADRB on 5 December 1973.  As a result,
the time for him to file request for correction of any error or injustice
to this Board expired on 4 December 1977.  He failed to 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

___SLP _  __RML __  __JGH __  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.




                                  _____Shirley L. Powell ____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001058                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/08/15                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1971/11/09                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |In Lieu of C-M                          |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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