RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            19 September 2006
      DOCKET NUMBER:   AR20060003083


      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. James Anderholm               |     |Chairperson          |
|     |Ms. Maribeth Love                 |     |Member               |
|     |Mr. Thomas Ray                    |     |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, in effect, that he did well in his training and
was sent to Vietnam.  After serving for 6 months he came home on leave only
to find that his wife had left with his daughter, so he tried to find them
and it took a few weeks to do so.  He further states that he was absent
without leave (AWOL) three times for about 150 days and he was young and
cared about his wife and daughter, but later learned that he was wrong.  He
continues by stating that some judge advocate general (JAG) officer came by
and told him that his unit in Vietnam had broken up and was sent back and
that he could get a chapter 10 discharge.  He also told the applicant that
it would not hurt his veteran’s benefits.  He goes on to state that he has
nightmares about Vietnam, that he is 57 years of age, that he has had a
heart attack, five by-pass surgeries and takes six different kinds of
medicine.  Inasmuch as he is unable to work, he desires to obtain his
medicines through the Department of Veterans Affairs (VA), but was informed
that he could not unless he got his discharge upgraded.  He also states
that his son is in the Army and loves it.

3.  The applicant provides a copy of his report of separation (DD Form
214), his Undesirable Discharge Certificate, and his disbarment letter for
exclusion from Fort Campbell, Kentucky.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 20 October 1971.  The application submitted in this case is
dated 13 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.  He was born on 4 December 1969 and enlisted in Montgomery, Alabama on
4 December 1969 for a period of 2 years.  He was married with two
dependents at the time of his enlistment.

4.  He completed his basic combat training at Fort Bragg, North Carolina
and his advanced individual training (AIT) at Fort Sill, Oklahoma.  Upon
completion of his AIT he was transferred to Vietnam for duty as a Field
Artillery Mechanic on 10 July 1970.  He was advanced to the pay grade of E-
4 on 22 December 1970.

5.  He departed on ordinary leave with a report date back to his unit in
Vietnam on 16 January 1971.  However, he did not return as scheduled and
was reported as being absent without leave (AWOL) on 17 January 1971.  He
remained absent in a deserter status until he surrendered to military
authorities at Fort McClellan, Alabama on 19 April 1971 and was transferred
to Fort Campbell, Kentucky, pending an update/verification of his status.


6.  He again departed AWOL on 21 June 1971 and remained absent until
28 June 1971.  He again went AWOL on 19 July 1971 and remained absent in
desertion until he was apprehended by civil authorities in North Port,
Alabama and was again returned to military control at Fort McClellan on 8
September 1971.  He was again transferred to Fort Campbell, where charges
were preferred against him for the AWOL offenses.

7.  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 not to submit a statement in his own behalf.

8.  The appropriate authority (a brigadier general) approved the
applicant’s request for discharge and directed that he be reduced to the
pay grade of E-1 and furnished with an Undesirable Discharge Certificate.

9.  Accordingly, he was discharged under other than honorable conditions on
20 October 1971, under the provisions of Army Regulation 635-200, chapter
10, in lieu of trial by court-martial.  He had served 1 year, 5 months and
20 days of total active service and had 150 days of lost time due to AWOL.

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 was then and still is
normally considered appropriate.

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 chose to voluntarily request 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 have been considered; however, they are not
sufficiently mitigating to warrant relief when compared to his repeated
absences, his undistinguished record of service and the fact that the
applicant offered no mitigating circumstances at the time to explain his
misconduct.  Accordingly, his service simply does not rise to the level of
even 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 20 October 1971; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 19 October 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

___JA___  ___ML __  ___TR __  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.




                                  ____James Anderholm___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003083                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060919                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1971/10/20                              |
|DISCHARGE AUTHORITY     |AR635-200/CH10 . . . . .                |
|DISCHARGE REASON        |GD OF SVC                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES         1.       |689/A70.00                              |
|144.7000                |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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