RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            09 January 2007
      DOCKET NUMBER:   AR20060008421


      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. Jerome Pionk                  |     |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 at the time of his discharge, he was having
family problems with his brothers and sisters not having a place to live
and trying to support them on what he was making.  He goes on to state that
at the time he had just returned from Vietnam and his mother passed away
suddenly in November.  He had to bring his five brothers and sisters and
his alcoholic dad to live with him.  After 3 months, his dad left with the
five kids and went back to New York and he went after them because he was
worried about his dad’s drinking and the way he treated the children.  He
continues by stating that his dad was making improper advances towards the
children and that he beat his mother when she was alive.

3.  The applicant provides a copy of his Department of Veterans Affairs
(VA) rating decision.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 3 November 1970.  The application submitted in this case is
dated 20 May 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 was born on 18 September 1941 and enlisted in Buffalo,
New York on 31 October 1961 for a period of 3 years under the Army Buddy
Plan.  At the time of his enlistment he indicated that he had seven
siblings.  He completed his basic combat training at Fort Knox, Kentucky
and his advanced individual training (AIT) as a field wireman at Fort
Chaffee, Arkansas.  Upon completion of his AIT he was transferred to Korea
on 2 April 1962.

4.  He departed Korea and was transferred to Fort Bragg, North Carolina.
He was honorably discharged in the pay grade of E-3 on 1 November 1963 for
the purpose of immediate reenlistment.  He reenlisted on 2 November 1963
for a period of 6 years and assignment to Europe.  He was transferred to
Germany on 6 December 1963 and was assigned to an artillery battery in
Nurnberg.  He was advanced to the pay grade of E-4 on 21 May 1964.

5.  He was married in Geneseo, New York on 18 July 1964 and on 17 August
1964, nonjudicial punishment was imposed against him for being absent from
his place of duty.  His punishment consisted of a forfeiture of pay and
restriction.

6.  He departed Germany on 13 November 1965 and was transferred to Fort
Bragg.  On 14 May 1966, he went absent without leave (AWOL) and remained
absent until he was returned to military control at Fort Dix, New Jersey on
16 May 1966.  He again went AWOL on 17 May 1966 and remained absent until
he was again returned to military control at Fort Dix on 11 July 1966.

7.  On 27 July 1966, he was convicted, pursuant to his pleas, by a special
court-martial of being AWOL from 14 May to 16 May and 17 May to 11 July
1966.  He was sentenced to a reduction to the pay grade of E-3 and a
forfeiture of pay.

8.  He was transferred to Vietnam on 25 October 1966 and was assigned to an
artillery battery in Pleiku, South Vietnam for duty as a switchboard
operator.

9.  On 2 December 1966, nonjudicial punishment was imposed against him for
being AWOL from 29 November to 30 November 1966.  His punishment consisted
of a reduction to the pay grade of E-2.

10.  He extended his tour in Vietnam for a period of 6 months and was
promoted to the pay grade of E-5 on 22 February 1968.  He departed Vietnam
on 28 May 1968 and was transferred to Fort Hood, Texas.  He reported to
Fort Hood on 10 July 1968 and was assigned as a tactical communications
chief of an artillery battery.

11.  The applicant went AWOL on 7 August 1969 and remained absent in
desertion until he was returned to military control in Medford, Oregon on
16 August 1970 and was transferred to Fort Lewis, Washington, where charges
were preferred against him for the AWOL offense.

12.  The facts and circumstances surrounding the applicant’s discharge are
not present in the available records.  However, his records do contain a
duly constituted report of separation (DD Form 214), signed by the
applicant, which shows that he was discharged at Fort Lewis, on 3 November
1970, under the provisions of Army Regulation 635-200, chapter 10, in lieu
of trial by             court-martial.  He had served 3 years, 4 months and
28 days of active service during his current enlistment and 5 years, 4
months and 29 days of total active service and he had 444 days of lost time
due to AWOL.  His awards included the National Defense Service Medal, the
Vietnam Service Medal and the Republic of Vietnam Campaign Medal.

13.  There is no evidence in the available records to show that the
applicant ever applied to the Army Discharge Review Board for an upgrade of
his discharge within that board’s 15-year statute of limitations.

14.  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 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 is normally considered appropriate.

 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.  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 voluntarily requested 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 contention that he went AWOL to help his siblings in
New York after his mother’s death has been noted; however, he was returned
to military control a year later, in Medford, Oregon.  Accordingly, the
applicant has failed to show through the evidence of record or evidence
submitted with his application, sufficient mitigating circumstances to
warrant an upgrade of his discharge when compared to his undistinguished
record of service and overall record of misconduct during his service.

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 3 November 1970; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 2 November 1973.  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____  __JP____  ___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 Anderholm____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060008421                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1970/11/03                              |
|DISCHARGE AUTHORITY     |AR635-200/ch10 . . . . .                |
|DISCHARGE REASON        |Gd of svc                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |689/a70.00                              |
|1.144.7000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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