RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 March 2007
      DOCKET NUMBER:  AR20060007930


      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:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Larry W. Racster              |     |Member               |
|     |Mr. Rodney E. Barber              |     |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 a
fully honorable discharge and that his rank and pay grade be restored to
sergeant, E-5.

2.  The applicant states, in effect, that he served proudly in the Army.
This is reflected in his excellent conduct and efficiency ratings.  He
obtained the rank of sergeant shortly after his 19th birthday while
serving in Vietnam.  He was awarded the Army Commendation Medal for valor
in 1969 and served in four campaigns.  His long term goal was to make the
military a career and he had a good start.  He was proud of the uniform he
wore and what he had accomplished at such a young age for his country.

3.  The applicant further states, in effect, after returning from
Vietnam, he married and it was at this point that everything fell apart
in his life and in his military career goals.  His marriage brought him
problems beyond his ability to cope with or to understand at such a young
age.  Many marital issues developed, he states, which affected him and
the decisions he made at the time.  He has regretted these decisions to
this day.  Due to these marital issues, he was discharged from the
service.  He was young and headstrong at the time and did not understand,
nor did he consider the long grief and effect he would suffer because of
such poor decisions.  He had the opportunity to have his rank reinstated
and assigned to an excellent duty post but because of his young age and
lack of understanding, he declined.

4.  The applicant summarizes by stating, in effect, he had been counted
AWOL (absent without leave) in an attempt to save his marriage – the
marriage failed anyway which caused even greater grief for him and his
children.  He had placed a failing marriage over service to his country for
which he is sincerely and gratefully sorry.  He is now 56 years of age and
has been serving as a security officer for the Department of Energy.  He
has spent many years getting his life back together.

5.  The applicant provided no additional documents, besides his application
to the Board, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice that
occurred on 23 December 1971, the date his originally issued discharge was
upgraded to a
general (under honorable) discharge, instead of to a fully honorable
discharge.  The application submitted in this case is dated 28 May 2006 and
was received for processing on 7 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 applicant enlisted in the Regular Army for a period of 4 years on
31 October 1967.  He successfully completed basic combat training at Fort
Ord, California, and his advanced individual training at Fort Leonard Wood,
Missouri.  On completion of his advanced training, he was awarded the
military occupational specialty (MOS), 12A, Pioneer.

4.  On 12 April 1967, the applicant received nonjudicial punishment under
the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ)
for failing to go, at the prescribed time, to his appointed place of duty,
on 9 April 1967.  The imposed punishment was a forfeiture of $14.00,
restriction to the company area for 14 days, and to perform extra duties
for 14 days.  The applicant did not appeal the punishment imposed.

5.  On 15 June 1967, the applicant was assigned to Germany as his first
duty station.  He was assigned to Battery A, 6th Battalion, 10th Artillery
Regiment.  The evidence shows the applicant was reclassified to the MOS,
13A, Field Artillery Basic, on 15 September 1967, as a result of on-the-job
training.

6.  On 30 October 1967, the applicant was honorably discharged for the
purpose of immediately reenlisting.  He reenlisted for 3 years on 31
October 1967.

7.  On 18 June 1968, the applicant was reassigned for duty in Vietnam.  He
was assigned to the 7th Battalion, 15th Artillery Regiment.  He served with
this unit until he completed his overseas tour of duty in Vietnam on 5 June
1969.

8.  While in Vietnam and with this unit, the applicant was awarded the Army
Commendation Medal, for meritorious achievement, for the period 9 to
10 January 1969, by General Orders Number 126, Headquarters, I Field Forces
Vietnam Artillery, dated 12 February 1969.

9.  The citation related to the Army Commendation Medal the applicant was
awarded states, in effect, the applicant distinguished himself by
volunteering to aid in the recovery of sixty 8-inch howitzer projectiles
which were submerged in an irrigation reservoir due to the wreck of a five-
ton truck which had been ambushed while returning to the battery location.
 To recover the projectiles, it was necessary for the applicant to dive to
the bottom and dig projectiles out of the deep mud before they could be
removed from the reservoir.  His efforts materially contributed to the
successful recovery of the munitions and thus prevented the possibility of
the enemy employing them against friendly forces.

10.  While in Vietnam, the applicant volunteered for school training in the
MOS 68B (Aircraft Powerplant Repairer).  He reported to The School Brigade,
Fort Eustis, Virginia, on 15 July 1969, and was enrolled as a student in
class number 3-70.

11.  The evidence shows on 6 August 1969, the applicant departed AWOL from
training.  He was relieved from training due to AWOL on 15 August 1969.  A
recommendation was made that he be reverted to his previously awarded MOS.

12.  The applicant's DA Form 20, Enlisted Qualification Record, Item 44
(Time Lost Under Section 972, Title 10, United States Code and Subsequent
to Normal Date ETS (Expiration Term of Service), shows he returned to
military control from being AWOL, on 3 September 1969, at Fort Sill,
Oklahoma.

13.  On 31 October 1969, the applicant received nonjudicial punishment
under the provisions of Article 15 of the UCMJ for having absented himself
from his unit at Fort Eustis, Virginia, and remaining so absent until 4
September 1969.  The imposed punishment was a reduction to the rank of
Specialist Four, E-4 (suspended for 90 days), restriction to the battery
area for 15 days, and to perform extra duties for 30 days.  The applicant
did not appeal the punishment imposed.

14.  The applicant received non-judicial punishment on 10 November 1969.
Although he was found guilty, the commander did not impose any punishment.
Instead, he vacated the suspension of reduction to Specialist Four, E-4,
which had been imposed on him in the Article 15 that was administered on 31
October 1969.

15.  On 11 December 1969, orders were published reassigning the applicant
to Germany for duty.  He was scheduled to report to the Overseas
Replacement Station, Fort Jackson, South Carolina, on 26 January 1970.  The
applicant failed to report and was reported AWOL.

16.  The applicant surrendered himself to military authorities in Houston,
Texas, on 23 March 1970.  He was transported and assigned to the Special
Processing Detachment, US Army Garrison, Fort Sam Houston, Texas, on the
same date.

17.  On 9 April 1970, the applicant departed in an AWOL status from his
unit.  He was dropped from the rolls of his unit on the same date in
accordance with applicable regulations.

18.  The applicant was returned to military control at the Special
Processing Detachment, US Army Garrison, Fort Hood, Texas, on 24 April
1970, and was placed in pre-trial confinement on the same date.

19.  On 1 May 1970, charges were preferred against the applicant for
absenting himself from his unit, the US Army Overseas Replacement
Station, on 26 January 1970 and remaining so absent until 23 March 1970
and for absenting himself from his unit, the Special Processing
Detachment, US Army Garrison, Fort Hood, Texas, on 9 April 1970 and
remaining so absent until 18 April 1970.

20.  The applicant was referred for trial by a special court martial which
was empowered to adjudge a bad conduct discharge.

21.  Documents related to the applicant's discharge show that on 27 May
1970, the applicant voluntarily submitted a request for discharge for the
good of the service under the provision of Army Regulation (AR) 635-200,
Chapter 10.

22.  In his request for discharge, the applicant stated he was making his
request of his own free will and had not been subjected to coercion
whatsoever by any person and had been advised of the implications that were
attached to it.

23.  The applicant stated that he understood that if his request were
accepted, he could be discharged under other than honorable conditions and
furnished an undesirable discharge certificate.  He stated he understood as
a result of the issuance of such a discharge he may be ineligible for many
or all benefits administered by the Veterans Administration [now the
Department of Veterans Affairs], and that he might be deprived of his
rights and benefits as a veteran under both Federal and State law.  He also
stated he understood that he may expect to encounter substantial prejudice
in civilian life by reason of an undesirable discharge.
24.  Prior to completing his request for discharge for the good of the
service, the applicant was afforded the opportunity to consult with
appointed counsel.  He consulted with counsel on 27 May 1970 and was fully
advised by counsel in the matter.

25.  Applicant's counsel made a statement he had advised the applicant of
the basis for the contemplated trial by court-martial pending against him
and having been advised that conviction could lead to a bad conduct or a
dishonorable discharge, and having been advised of his rights, he [the
applicant] personally made the choices indicated in his request for
discharge.

26.  The applicant did not submit a statement in his own behalf.  A
statement, which summarized the applicant's service, was made by the
Staff Judge Advocate (SJA).  The SJA recommended his discharge be
approved.

27.  The applicant underwent a separation physical examination on 18 May
1970. He was found medically qualified for separation on the same date.

28.  The applicant's request for discharge for the good of the service
was approved by the appropriate approving authority, a lieutenant
general, on 17 June 1970, and it was ordered by the approving authority
he be furnished an undesirable discharge certificate.

29.  The applicant was discharged with an undesirable discharge
certificate with his service characterized as under other than honorable
conditions.  He was discharged in the rank and pay grade Private, E-1.
The authority for his separation was AR 635-200, Chapter 10.  He was given
an SPN (Separation Program Number) "246."  On the date of his discharge,
the applicant had completed a combined total of 3 years and 27 days
creditable active military service, with 131 days time lost.

30.  The applicant was promoted to the rank and pay grade, Sergeant, E-5,
on 29 November 1968.  This would be the highest rank and pay grade he
would hold while serving in the Army.

31.  Item 24, of the applicant's DD Form 214, shows he was awarded the
Vietnam Service Medal, with four bronze service stars, the Republic of
Vietnam Campaign Medal, the Army Commendation Medal, and the Sharpshooter
Marksmanship Qualification Badge, with Rifle Bar (M-14 Rifle), while he
was on active duty.
32.  The applicant applied to the Army Discharge Review Board (ADRB) for an
upgrade of his discharge within its 15-year statute of limitations.  On
23 December 1971, he was advised that after careful consideration of his
military records and all other available evidence, the Secretary of the
Army had directed his discharge be changed to a general (under honorable
conditions) discharge.

33.  AR 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 submit, at
any time after the charges have been preferred, a request for discharge
for the good of the service, in lieu of trial by court-martial.  An
undesirable discharge is normally considered appropriate, but the
separation authority may direct a general discharge or an honorable
discharge if such is merited by the Soldier's overall record and if the
Soldier's record is so meritorious that any other characterization
clearly would be improper.

34.  AR 635-200, paragraph 3-7a, 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, 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.

35.  AR 680-3-2, Table 1, Enlisted Separation Program Designator Chart and
Valid Codes for Reenlistment Eligibility, Character of Service, Type
Transaction, Service Component, and Sex, shows the SPN "246" translates to
"Discharge for the Good of the Service."

36.  There is no evidence in the applicant's service record he ever brought
his alleged marital issues to the attention of his chain of command, the
chaplain, members of the staff judge advocate, or to any of the social
agencies which were available to provide Soldiers such as him with similar
problems in helping to resolving them.

37.  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 US Court of Appeals,
observing that applicants to the ADRB are by statute allowed 15 years to
apply there, and that this Board's exhaustion
requirement (AR 15-185, paragraph 2-8), effectively shortens that filing
period, has determined that the 3-year limit on filing to the 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 available evidence shows the applicant was discharged under the
provisions of AR 635-200, Chapter 10, for the good of the service.  In
connection with such a discharge, the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge.  Procedurally, the applicant was required to consult with
defense counsel, and to voluntarily, and in writing, request separation
from the Army in lieu of trial by court-martial.  In doing so, the
applicant admitted guilt to the stipulated offenses under the UCMJ.

2.  The evidence shows the applicant was sent to Fort Eustis, Virginia, to
undergo school training and while there he went AWOL from his unit.  He was
relieved from this training while he was AWOL.

3.  The evidence shows he returned to military control at Fort Sill,
Oklahoma.  He received non-judicial punishment for his absence.  The
punishment imposed included a suspended reduction to Specialist Four, from
the rank of Sergeant.  The applicant again violated the UCMJ and was
reduced in rank to Specialist Four.

4.  The evidence shows the applicant was ordered overseas to Germany;
however, he did not report to the overseas replacement station in
accordance with his orders.  He was reported as AWOL from this unit.  He
returned to military control at Houston, Texas, and was transported to
Fort Sam Houston, Texas.  He again departed AWOL and was dropped from the
rolls of his organization.

5.  The evidence shows the applicant then returned to military control at
Fort Hood, Texas.  He was placed in pretrial confinement.  While in
confinement, he requested discharge for the good of the service, in lieu of
trial by court-martial.  The applicant's request was approved by the
general court-martial convening authority.

6.  There is no evidence in the applicant's service records, and the
applicant provided none, to show that his marital difficulties were the
reason for his
continually going AWOL and which eventually lead to court-martial charges
being
brought against him.  The evidence shows his difficulties began while he
underwent school training at Fort Eustis and it is apparent through his
later misconduct he was neither willing nor able to correct his behavior
and to continue to conduct himself as a Soldier.

7.  The applicant was reduced in rank from sergeant to specialist four as
indicated in paragraph 3 above, for misconduct.  He continued his pattern
of misconduct by going AWOL from units to which he was assigned two more
time before he was placed in pretrial confinement based on his history of
going AWOL.

8.  Court-martial charges were preferred against the applicant for his
having been AWOL from 26 January 1970 to 23 March 1970 and for being AWOL
from 9 April to 18 April 1970, a total of 67 days.  It was while the
applicant was in pre-trial confinement he requested discharge for the good
of the service to avoid trial by court-martial.  The applicant who had
served as a noncommissioned officer had served as a role model for younger
Soldiers.  He abdicated this role and the associated responsibilities and
ceased to be an example to follow; therefore, he is not deserving of being
restored to the rank and pay grade, Specialist Four,
E-4, the rank and pay grade he last held on being returned to military
control and discharged for the good of the service.

9.  All documents related to his discharge indicate that all requirements
of law and regulation were met and the rights of the applicant were fully
protected throughout the separation process.

10.  The applicant applied to the ADRB for an upgrade of his discharge.
After careful consideration of his military records and all other
available evidence, the ADRB determined he merited an upgrade of his
discharge from undesirable to general (under honorable conditions).

11.  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.

12.  In view of the foregoing, there is no basis for granting the
applicant's request to change his general (under honorable conditions) to
a fully honorable discharge and to restore him to a rank from which he
was reduced for misconduct.

13.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 23 December
1971.  As a result, the time for him to file a request for correction of
any error or injustice to this Board expired on 22 December 1974.
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

_LWR___  __MKP __  __REB__  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.




                                  _____M. K. Patterson______
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20060007930                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070315                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19700629                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 10                  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |144.0135                                |
|3.                      |144.7100                                |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]