RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 December 2006
      DOCKET NUMBER:  AR20060008443


      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:

|     |Ms. Kathleen Newman               |     |Chairperson          |
|     |Mr. Paul Smith                    |     |Member               |
|     |Mr. John Moeller                  |     |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.

2.  The applicant states, in effect, that he would do things differently if
he could go back to that time in his life.  He states that since his
discharge he has maintained employment and owned two businesses.

3.  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 4 November 1971.  The application submitted in this case is
dated 8 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 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 inducted on 5 June 1969.  He successfully completed
basic combat training and advanced individual training in military
occupational specialty 11B (light weapons infantryman).

4.  On 13 November 1969, the applicant requested deferment from service in
Vietnam based on the assignment of his brother in Vietnam.  His request was
approved on 14 November 1969 and the maximum period of the deferment was
based upon his brother being eligible to return from Vietnam in June 1970.

5.  The applicant went absent without leave (AWOL) on 1 June 1970 and
returned to military control on 11 June 1970.  He went AWOL on 25 July 1970
and returned to military control on 12 January 1971.  He went AWOL on
19 February 1971 and returned to military control on 23 February 1971.  He
went AWOL on 26 February 1971 and returned to military control on 3 March
1971.  He went AWOL again on 26 March 1971 and returned to military control
on
4 August 1971.  On 8 October 1971, charges were preferred against the
applicant for the AWOL periods.  Trial by special court-martial was
recommended.

6.  On 14 October 1971, 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 to submit a statement in his own behalf;
however, his statement is not available.

7.  On 29 October 1971, the separation authority approved the applicant’s
request for discharge and directed that he be furnished an undesirable
discharge.

8.  Accordingly, the applicant was discharged with an undesirable discharge
on
4 November 1971 under the provisions of Army Regulation 635-200, chapter
10, for the good of the service.  He had served 1 year, 6 months, and 12
days of total active service with 321 days of lost time due to AWOL.

9.  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.

10.  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.

11.  Army Regulation 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 (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.
12.  Army Regulation 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 the Soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  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.

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

3.  Since the applicant’s record of service included 321 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.

4.  Records show the applicant should have discovered the alleged injustice
now under consideration on 4 November 1971; therefore, the time for the
applicant to file a request for correction of any injustice expired on 3
November 1974.  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

KN_____  _PS_____  _JM_____  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.



                                  _Kathleen Newman______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060008443                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061219                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19711104                                |
|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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