RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 October 2006
      DOCKET NUMBER:  AR20060004037


      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             |
|     |Ms. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Gunlicks                |     |Chairperson          |
|     |Mr. Michael Flynn                 |     |Member               |
|     |Mr. Scott Faught                  |     |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
honorable.

2.  The applicant states that he served a tour in Vietnam and that he has
some combat experience.  He contends that he developed a drug problem in
Vietnam but after being caught he kicked the habit by going through a
drying out phase and he quit for good.  He states that he was a basket case
of bad nerves when he came home from Vietnam, that he has developed
diabetes, and that he is on disability.

3.  The applicant also states that his undesirable discharge should be
upgraded to honorable for the following reasons:  (1) clemency is warranted
because it is an injustice for him to continue to suffer the adverse
consequences of a bad discharge; (2) under current standards, he would not
receive the type of discharge he did; (3) his average conduct and
efficiency ratings/behavior and proficiency marks were good; (4) he
received awards, decorations, and letters of commendation; (5) he had
combat service; (6) his record of promotions showed he was generally a good
service member; (7) he had a prior honorable discharge; (8) he has been a
good citizen since his discharge; (9) his record of nonjudicial
punishments/Article 15s, being absent without leave (AWOL), and his court-
martial convictions  indicate only isolated or minor offenses; (10) the
punishment he got at discharge were too harsh – it was much worse than most
people; (11) he tried to serve and wanted to, but just couldn’t or wasn’t
able to; and (12) when he got back from overseas, he just couldn’t adjust
to state-side duty

4.  The applicant provides a copy of his DD Form 214 (Report of Transfer or
Discharge.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 22 May 1973.  The application submitted in this case is dated
29 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 enlisted on 6 September 1968 for a period of 3 years.  He
trained as a sheet metal worker.  On 26 January 1971, he was honorably
discharged for immediate reenlistment.  He reenlisted on 27 January 1971
for a period of 6 years.

4.  The applicant went AWOL for one day on 28 June 1971.

5.  The applicant served as a metal body repairman and personnel clerk in
Vietnam from 9 November 1971 through 10 August 1972.

6.  The applicant went AWOL again on 15 September 1972, was apprehended by
the civil authorities, and returned to military control on 17 April 1973.
On
27 April 1973, charges were preferred against the applicant for the AWOL
period. Trial by special court-martial was recommended.

7.  On 4 May 1973, after consulting with counsel, the applicant submitted a
request for discharge for the good of the service under the provisions of
Army Regulation 635-200, chapter 10.  He indicated in his request that he
understood that he could be discharged under other than honorable
conditions and furnished an Undesirable Discharge Certificate, that he
might be deprived of many or all Army benefits, that he might be ineligible
for many or all benefits administered by the Veterans Administration and
that he might be deprived of his rights and benefits as a veteran under
both Federal and State law.  He also acknowledged that he might encounter
substantial prejudice in civilian life because of an undesirable discharge.
 He elected not to submit a statement in his own behalf.

8.  On 9 May 1973, the separation authority approved the applicant’s
request for discharge and directed that he be furnished an undesirable
discharge.

9.  Accordingly, the applicant was discharged with an undesirable discharge
on
22 May 1973 under the provisions of Army Regulation 635-200, chapter 10,
for the good of the service.  He had served 4 years, 1 month, and 12 days
of total active service with 215 days of lost time due to AWOL.

10.  The applicant’s DD Form 214 shows the National Defense Service Medal,
the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with
Device 1960, the Good Conduct Medal, and one award of the Overseas Service
Bar as authorized awards.

11.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge within its 15-year statute of
limitations.

12.  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.  At the time, an undesirable
discharge was normally considered appropriate.

13.  Army Regulation 635-200, currently in effect, 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 submit a request for discharge in lieu of trial by court-
martial.  The request may be submitted at any time after court-martial
charges have been preferred.  A discharge under other than honorable
conditions is normally considered appropriate.

14.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

15.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's contention that
under current standards he would not have received the type of discharge he
did.  The current governing regulation states that an individual discharged
in lieu of trial by court-martial would normally be furnished a discharge
characterized as under other than honorable conditions.
2.  Good post-service conduct alone is not a basis for upgrading a
discharge.

3.  The evidence of record does not support his contention that this record
of being AWOL indicates only isolated or minor offenses.  His record of
service includes two periods of AWOL for a total of 215 days of lost time.
He had 1 day of AWOL prior to going to Vietnam.

4.  The applicant’s voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial,
was administratively correct and in conformance with applicable
regulations.  He had an opportunity to submit a statement in which he could
have voiced his reasons for going AWOL and he failed to do so.

5.  The available records show that, other than the Good Conduct Medal, he
was awarded only service medals.

6.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.

7.  Since the applicant’s record of service included 215 days of lost time,
his record of service was not satisfactory and did not meet the standards
of acceptable conduct and performance of duty for Army personnel.
Therefore, the applicant's record of service is insufficiently meritorious
to warrant a general or honorable discharge.

8.  Records show the applicant should have discovered the alleged injustice
now under consideration on 22 May 1973; therefore, the time for the
applicant to file a request for correction of any injustice expired on 21
May 1976.  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

JG_____  MF______  SF______  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 Gunlicks____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004037                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061005                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19730522                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 10                   |
|DISCHARGE REASON        |For the good of the service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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