RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 April 2007
      DOCKET NUMBER:  AR20060009491


      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      |
|     |                                  |     |Analyst              |

      The following members, a quorum, were present:

|     |                                  |     |Chairperson          |
|     |                                  |     |Member               |
|     |                                  |     |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 records be corrected by upgrading his
discharge.

2.  The applicant states that his life was threatened by another Soldier
and he told his company commander who did nothing but tried to use it
against him.  That is when he went absent without leave (AWOL), to save his
own life.  He was also told that his discharge would automatically be
upgraded.

3.  The applicant provides no additional evidence in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 22 April 1970.  The application submitted in this case is dated
24 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 enlisted in the Regular Army on 19 January 1966, for a
period of 4 years.  He served in Vietnam from 25 November 1966 through 13
August 1967.

4.  Between 15 March 1966 and 4 April 1968 the applicant accepted six
nonjudicial punishments under the provisions of Article 15, Uniform Code of
Military Justice, for being AWOL, drunk and disorderly, and failure to go
at the time prescribed to his appointed place of duty.  His punishments
included reductions, extra duty, restriction and forfeitures of pay.

5.  On 11 December 1968, the applicant was convicted by a special court-
martial of being AWOL from 14 October 1968 to 25 November 1968.  He was
sentenced to a reduction to Private E-1, forfeiture of $97.00 per month for
6 months, and confinement at hard labor for 6 months (suspended until 11
June 1969).

6.  On 25 February 1969, his commander recommended he be barred from
reenlisting because of unsatisfactory conduct and efficiency, and his
record of  habitual misconduct.

7.  On 25 February 1969, the applicant acknowledged he had read and
understood the allegations made by his commander, and elected not to make a
statement on his own behalf.

8.  On 7 March 1969, the applicant's bar to reenlistment was approved.

9.  On 5 February 1970, the applicant's commander preferred court-martial
charges against him for being AWOL from 9 May 1969 to 27 January 1970.

10.  On 5 March 1970, after consulting with legal counsel, the applicant
voluntarily submitted a request for discharge for the good of the service,
under Army Regulation 635-200, Chapter 10, in lieu of trial by court-
martial.  He acknowledged that his request had been submitted of his own
free will with no coercion whatsoever by any person.  He acknowledged that
he understood the effects of receiving an under other than honorable
conditions characterization.  He also acknowledged that he understood that
he may be deprived of many or all Army benefits and that he may be
ineligible for many or all benefits administered by the Veterans
Administration, and that he may be deprived of his rights and benefits as a
Veteran under both Federal and State law.

11.  In conjunction with the applicant's request for discharge he submitted
a statement in which he acknowledged that it would be in his best interest
to get out of the military.  He stated that while serving in Vietnam he was
in the field 9 of the 11 months he was there and never received an Article
15 or a court-martial.  When he arrived at Fort Riley, Kansas he had
problems because of the racial tensions and went AWOL for 60 days.  He
realized he was losing his benefits by putting in his request, but realized
if he stays in he would go AWOL again.

12.  On 25 March 1970, the applicant's unit and brigade commander's
recommended approval of his discharge request with the issuance of an
undesirable discharge.

13.  On 8 April 1970, the appropriate separation authority approved the
applicant’s discharge request under the provisions of Army Regulation 635-
200, Chapter 10, for the good of the service, and directed his reduction to
the lowest enlisted grade and the issuance of an Undesirable Discharge
Certificate.


14.  On 17 April 1970, a medical examination cleared the applicant for
separation.

15.  On 22 April 1970, the applicant was discharged under the provisions of
Army Regulation 635-200, Chapter 10, for the good of the service in lieu of
court-martial.  His DD Form 214 (Armed Forces of the United States Report
of Transfer or Discharge) shows he had 3 years, 2 months, and 18 days of
creditable service, and 381 days of lost time.

16.  Army Regulation 635-200, then in effect, set forth the basic authority
for the separation of enlisted personnel.  Chapter 10 of that regulation
provided, in pertinent part, that a member who had committed an offense or
offenses for which the authorized punishment included a punitive discharge
could at any time after the charges had been preferred submit a request for
discharge for the good of the service in lieu of trial by court-martial.
At the time of the applicant’s separation, the regulation provided for the
issuance of an undesirable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant voluntarily requested separation under Army Regulation
635-200, Chapter 10, for the good of the service, to avoid a trial by court-
martial.

2.  The applicant’s administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
error which would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons therefore were
appropriate considering the facts of the case.

4.  There is no evidence in the available records nor did the applicant
provide documentation to substantiate his claim that he went AWOL because
another Soldier had threatened his life.

5.  The is no evidence or documentation to support the applicant's
contention that he was told his discharge would be automatically upgraded.


6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 April 1970; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
21 April 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

___JM  __  __TR ___  __RN ___  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.




                                  __________
                                            CHAIRPERSON














                                    INDEX

|CASE ID                 |AR20060009491                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20070417                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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