RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            31 October 2006
      DOCKET NUMBER:   AR20060005321


      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          |
|     |Mr. Jose Martinez                 |     |Member               |
|     |Mr. Bernard Ingold                |     |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 general discharge be upgraded to an
honorable discharge.

2.  The applicant states that he was not a draft dodger, that he went in
for a second tour of duty, that he volunteered to go to Vietnam and that
his service was honorable before the period in question.

3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 14 June 1977.  The application submitted in this case is dated
31 March 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 in Ashland, Kentucky, on 30 July 1963 for a
period of 3 years and assignment to Europe.  He completed his training at
Fort Dix, New Jersey, and reenlisted on 2 December 1963, for a period of 3
years.  He was transferred to Germany on 20 December 1963.  He was advanced
to the pay grade of E-4 on 8 September 1965.

4.  He was honorably discharged on 1 September 1966 for the purpose of
immediate reenlistment.  He reenlisted on 2 September 1966 for a period of
6 years.  He departed Germany on 23 December 1966 and was transferred to
Fort Knox, Kentucky, where he remained until he was again transferred to
Germany on 3 February 1968.

5.  He was transferred to Vietnam on 3 October 1968 and he was promoted to
the pay grade of E-5 on 16 December 1968.  He remained in Vietnam until
17 September 1969, when he was transferred to the hospital at Fort Knox as
a patient.  He remained at Fort Knox until he was transferred to Fort
Riley, Kansas, on 8 February 1970.
6.  The applicant was ordered to report to the replacement detachment at
Fort Riley on 8 February 1970; however, he failed to do so and was reported
as being absent without leave until he was returned to military control on
11 February 1970 and nonjudicial punishment (NJP) was imposed against him
on 12 February 1970 for the AWOL offense.  His punishment consisted of a
forfeiture of pay.

7.  On 9 March 1970, he went AWOL and remained absent in a deserter status
until he was returned to military control at Fort Gordon, Georgia on 30
November 1973 and charges were preferred against him for the AWOL offense.

8.  The facts and circumstances surrounding the applicant’s discharge are
not present in the available records.  However, his records do contain a
duly authenticated report of separation (DD Form 214) which shows that the
applicant was discharged under other than honorable conditions on 21
January 1974, under the provisions of Army Regulation 635-200, chapter 10,
in lieu of trial by court-martial.  He had served 6 years, 8 months and 14
days of total active service and had 908 days of lost time due to AWOL.

9.  On 23 December 1975, the applicant was awarded a Clemency Discharge
pursuant to Presidential Proclamation 4313 dated 16 September 1974.  He was
advised at that time that he could apply to the Army Discharge Review Board
(ADRB) for a change of his discharge.

10.  On 3 May 1977, he applied to the ADRB under the Department of Defense
Discharge Review Program (Special) for an upgrade of his discharge. The
ADRB determined that while his service was not fully honorable, given his
Vietnam service, his discharge should be upgraded to a general discharge.
The ADRB upgraded his undesirable discharge on 14 June 1977.  On 5 April
1978, the ADRB voted to affirm the applicant’s general discharge.

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 voluntary 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 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 at that time and is still
normally considered appropriate.

12.  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.  In the absence of evidence to the contrary, it must be presumed that
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.  Notwithstanding the actions by the ADRB,  the type of discharge
directed and the reasons therefore were appropriate under the
circumstances.

3.  The applicant’s contentions have been considered by the Board.
However, they are not sufficiently mitigating to warrant relief when
compared to his overall record of undistinguished service and the extensive
length of his absence.  His service simply does not rise to the level of a
fully honorable discharge.

4.  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.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 14 June 1977.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 13 June 1980.  The
applicant did not file within the ABCMR's 3-year statute of limitations and
has not provided 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___  ___JM __  ___BI ___  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                 |AR20060005321                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061031                                |
|TYPE OF DISCHARGE       |(GD)                                    |
|DATE OF DISCHARGE       |1974/01/24                              |
|DISCHARGE AUTHORITY     |AR 635-200/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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