RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 March 2007
      DOCKET NUMBER:  AR20060007761


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mr. Luis Almodova                 |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Scott W. Faught               |     |Member               |
|     |Mr. Roland Venable                |     |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 discharge be upgraded to
general, under honorable conditions.

2.  The applicant states, in effect, that the Army always knew his
whereabouts and the reason.

3.  In support of his request, the applicant provides a self-authored
statement in which he summarizes his return to the United States from
Vietnam, the activities which caused his delay in returning to military
control, including a twenty-two month period in confinement in California;
and a DD Form 293, Application for Review of Discharge from the Armed
Forces of the United States.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice that
occurred on 23 January 1976.  The application submitted in this case is
dated 1 March 2006 and was received for processing on 5 June 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 limitation 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 evidence shows the applicant was inducted into the Army of the
United States, on 8 January 1964.  He was awarded the military occupational
specialty 310, Field Communications Crewman.

4.  The applicant was assigned to the 34th Ordnance Company on 27 May 1964.
 This unit was redesignated to the 576th Ordnance Company on 14 August
1964.

5.  On 29 April 1965, the applicant was discharged in the rank and pay
grade, private first class, E-3, for the purpose of reenlisting in the
Regular Army for a period of 3 years.

6.  On 16 July 1965, the applicant and his unit were reassigned to Vietnam.
 He voluntarily extended his overseas tour of duty and remained in Vietnam.

7.  On 3 March 1966, the applicant received nonjudicial punishment under
the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ)
for absenting himself from his place of duty on 18 February 1966.  The
imposed punishment was a forfeiture of $25.00 and restriction to the
company area and place of duty for 14 days.

8.  On 14 July 1966, the applicant was promoted to the rank and pay grade,
specialist four, E-4.  This would be the highest rank and pay grade the
applicant would hold while on active duty.

9.  On 14 December 1966, the 29th General Support Group prepared Special
Orders Number 91, paragraph 13, assigning the applicant to the US Army
Returnee Reassignment Station, Fort Hamilton, New York, with a reporting
date of 15 December 1966.  On 16 December 1966, these orders were amended
reassigning the applicant to the US Army Returnee Reassignment Station,
Oakland Army Base, Oakland, California.  The reporting date remained
unchanged.

10.  The applicant completed his extended tour of duty in the Republic of
Vietnam on 17 December 1966 and he departed Vietnam en route to the
Continental United States.

11.  On 19 January 1967, the US Army Personnel Center, Oakland Army Base,
published Special Orders Number 19, paragraph 166, reassigning the
applicant to the 502nd Administration Company, Fort Hood, Texas.  The
special instructions in these orders read, in part, "Upon receipt of these
orders, individuals concerned will proceed without delay to new duty
station provided authorized leave has expired.  All lapsed time, other
than authorized leave and travel time, is chargeable as administrative
absence awaiting assignment instructions.”

12.  A DA Form 19-32, Military Police Report, dated 25 July 1967, in the
applicant's service record shows he was apprehended by civilian authorities
in Mountain Home, Arkansas, on 14 July 1967, for being absent without leave
(AWOL).  He was transported to and detained at the Baxter County Jail until
he was returned to military control at Little Rock Air Force Base (AFB),
Arkansas, on 14 July 1967.  On 19 July 1967, the applicant was released
from the stockade at Little Rock AFB and was transported to Fort Smith,
Arkansas, and detained in the Sebastian County Jail.  On 24 July 1967, the
applicant was transported to Fort Sill, Oklahoma, and released to the
military police.
13.  A DA Form 19-32, dated 30 August 1967, in the applicant's service
record shows that on this date, the applicant was released to the Comanche
County Sheriff's Office, was transported and detained in the county jail
pending extradition to the San Joaquin County Jail in California.

14.  On an unknown date, the Executive Officer, Special Processing
Detachment (SPD), Presidio of San Francisco, California, addressed a letter
to the Commander, SPD, US Army and Artillery and Missile Center, Fort Sill.
 In this letter he informed him that due to the serious workload of the
unit they could not assume administrative responsibility for the applicant.

15.  On 9 January 1968, the Assistant Executive Officer, SPD, Fort Sill,
Oklahoma, submitted a request to the Commanding General, Sixth US Army,
Presidio of San Francisco, that orders be published reassigning the
applicant to the nearest SPD to his place of confinement.  The applicant,
this official advised, was released from confinement at Fort Sill to the
Comanche County Sheriff's Office for extradition to Stockton, California.

16.  On 15 January 1968, the Commanding General, Sixth US Army, advised the
Commanding Officer, Presidio of San Francisco, his command would be
designated to take final action in the case of the applicant.

17.  On 23 January 1968, Headquarters, Presidio of San Francisco, published
Special Orders Number 18, paragraph 30, assigning the applicant to the SPD,
Presidio of San Francisco.

18.  On 16 July 1968, the applicant submitted a statement on an S/D JA
Form 136 [acronym and title - unknown].  At the time, the applicant was in
the Stanislaus County Jail, Modesto, California.  In this statement, he
wrote, in part, "I returned to the United States on 15 December 66 for a 45
day leave.  I picked up my new orders for 502nd Admin Sect. Fort Hood,
Texas, on 18 Feb 67, at the Oakland Army Terminal at Oakland, California.
Since that time, I have been AWOL (absent without leave)."

19.  On 11 September 1968, the Office of the District Attorney, San Joaquin
County, California, notified the Department of the Army:

      a.  The applicant had been sentenced by the superior court to one
year in the county jail on 2 October 1967.

      b.  The applicant was released from the jail on Sheriff's Office
parole on 24 April 1968.  He was released to the Modesto Police Department
and the Shore Patrol had a "hold" on him.

      c.  On 28 May 1968, he was sentenced to four months in the Stanislaus
County Jail.

      d.  After being released from the Stanislaus County Jail, he was
picked up by the Merced County Sheriff's Office and the Shore Patrol had
a "hold" on him to that jurisdiction.  From Merced County, he was
released to the Contra Costa County Sheriff's Office and was, on that
date, serving time, in the jail in that county, in Martinez, California.
The deputy district attorney noted the applicant had a "hold" on him by
Alameda County.

20.  On 10 February 1969, the applicant was reported AWOL and dropped
from the rolls of the SPD, Presidio of San Francisco.  On 23 October
1975, the applicant was apprehended by armed forces police and was
detained pending transport to Fort Ord, California.  He was assigned to
the US Army Personnel Control Facility (PCF), Fort Ord, with a reporting
date of 23 October 1975.

21.  On 29 October 1975, the applicant underwent a physical examination.
The results of the physical examination were approved on 13 November 1975.

22.  On 10 November 1975, the applicant was advised he was being considered
for elimination for an AWOL of one year or more under the provisions of
Army Regulation (AR) 635-200, Chapter 15.  He was advised of his rights to
consult with consulting counsel, to present his case before a board of
officers, to submit a statement in his own behalf, to be represented by
counsel, to waive his rights in writing, and to withdraw his waiver any
time prior to the date the discharge authority approved his discharge or
that his case was presented to a board of officers.

23.  On 11 November 1975, the applicant acknowledged the notice and his
rights.  He waived consideration of his case by a board of officers, he
waived a personal appearance before a board of officers, and waived
representation by counsel.  The applicant opted to submit a written
statement in his own behalf.

24.  In his statement, the applicant summarized his Army service, his
service in Vietnam, difficulties he allegedly had with his orders
resulting in his being charged with AWOL, his assignment to Fort Hood,
Texas, and the encounters he had with
civilian authorities on his way to Fort Hood.  The applicant omitted
details pertinent to civilian charges which resulted in his incarceration
and his absence from the military for the period of over one year.  In
his statement, he stated he had been AWOL for the period from on or about
10 February 1969 to on or about 24 October 1975.

25.  On 13 November 1975, the applicant applied for and was given authority
for excess leave pending approval of his separation.

26.  While on excess leave, the applicant underwent a mental status
evaluation on 10 December 1975.  The applicant's behavior was found to be
normal.  He was found to be fully alert and fully oriented.  His mood was
level, his thinking process was clear, and his thought content was
normal.  His memory was good.  The evaluating psychiatrist, a medical
doctor, found him to not have any significant mental illness, to be
mentally responsible, able to distinguish right from wrong, able to
adhere to the right, to have the mental capacity to understand and
participate in board proceedings, and to meet the retention standards of
AR 40-501, Chapter 3.

27.  On 23 December 1975, the PCF commander recommended the applicant
be separated from the Army, under the provisions of Army Regulation 635-
200, Chapter 15, based upon his unauthorized absence from his assigned Army
unit from on or about 10 February 1969 to on or about 23 October 1975.
Trial was deemed unadvisable in view of the seriousness of the offense and
his negative attitude toward the Army.  His retention was neither practical
nor desirable.

28.  On 2 January 1976, the Commander, Headquarters Command, recommended
approval of the applicant's separation and recommended he be separated
with an undesirable discharge.  He further recommended court-martial
action be waived.  The applicant's chain of command unanimously
recommended approval of the recommendations.

29.  On 9 January 1976, the approving authority, approved the applicant's
separation under the provisions of Army Regulation 635-200, Chapter 15,
with an undesirable discharge and directed his reduction to the lowest
enlisted pay grade.

30.  The applicant was reduced from the rank and pay grade specialist four,
E-4, to the rank and pay grade private, E-1, with an effective date of 9
January 1976.
31.  The applicant was discharged with an undesirable discharge, in the
rank and pay grade of Private, E-1, on 23 January 1976, under the
provisions of Army Regulation (AR) 635-200, Chapter 15.  On the date of his
discharge, the applicant had completed a combined total of 3 years,
3 months, and 26 days, creditable active military service, with 3,180 day
time lost.

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

33.  AR 635-200 sets forth the basic authority for the separation of
enlisted personnel.  Chapter 15 of that regulation provided, in pertinent
part, for the elimination of enlisted personnel for misconduct by reason of
absence without leave or desertion.  Elimination action under the
provisions of this chapter would not be taken in lieu of disciplinary
action solely to spare an individual the penalties which could be imposed
under the Uniform Code of Military Justice.  When absentees were returned
to military control from a status of AWOL or desertion, the commander
exercising general courts-martial jurisdiction could direct discharge,
direct retention, or convene an administrative discharge board or approve
discharge but suspend its execution.

34.  AR 635-200, paragraph 3-7b, 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 separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  On the applicant's return from Vietnam, he was ordered to the Returnee
Reassignment Station, Oakland Army Base.  He was provided orders assigning
him to Fort Hood, Texas.

2.  The applicant, in a statement submitted on 16 July 1968, stated, in
effect, he had returned from Vietnam on 15 December 1966, he had picked up
his orders and he had been AWOL since that time.
3.  The evidence shows the applicant's statement was not completely
factual.  He had been arrested, detained, sentenced and had spent time in
jails and in military detention facilities in Arkansas, Oklahoma, and in
California, for a variety of violations of law.

4.  After the applicant had spent time in a variety of county jails in
Oklahoma and in California, he was returned to military control at the
Presidio of San Francisco.  While at the SPD at that location, he
departed AWOL and was reported as a deserter on 10 February 1969.

5.  The evidence shows the applicant was apprehended by armed forces police
and was returned to military control on 23 October 1975.  He was assigned
to the PCF, Fort Ord, so that his absence(s) from the military could be
addressed and an appropriate disposition/determination could be made in his
case.

6.  The evidence shows the applicant's commander recommended the applicant
for separation from the Army and was discharged under the provisions of
AR 635-200, Chapter 15, for misconduct - AWOL.

7.  The evidence shows that all requirements of law and regulation were
met and the rights of the applicant were fully protected throughout the
separation process. The characterization of service for this type of
discharge was normally under other than honorable conditions and
issuance of an undesirable discharge was appropriate.  It is believed
that the reason for discharge and the characterization of service were
both proper and equitable.

8.  In order to justify correction of a military record, the applicant must
show, 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.

9.  In view of the foregoing, there is no basis for granting the
applicant's request for an upgrade of his undesirable discharge.

10.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 January 1976; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 22 January 1979.  However, 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

___A____  _RSV___  ___SWF_  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 E. Anderholm____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060004795                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070306                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |144.0133                                |
|3.                      |144.6300                                |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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