RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 March 2007
      DOCKET NUMBER:  AR20060011811


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Thomas M. Ray                 |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. James R. Hastie               |     |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 undesirable discharge (UD)
be upgraded to a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, that he wanted to get his orders
changed to comply with the training assignment indicated in his contract.
He claims he had no problems until he received orders for the Republic of
Vietnam (RVN), at which time he went absent without leave (AWOL) and went
to the Pentagon to get his orders changed.  He states that he wanted a life
as a service man, but he was done wrong and this event ended his military
service.

3.  The applicant provides a self-authored letter in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 1 March 1972, the date of his discharge.  The application
submitted in this case is dated 25 July 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's record shows that he was initially inducted into the
Army and entered active duty on 11 March 1971.  It also shows that he was
honorably discharged for the purpose of immediately enlisting in the
Regular Army (RA) on 15 March 1971.

4.  On 16 March 1971, the applicant enlisted in the RA for 3 years.  The
enlistment contract (DD Form 4) completed in conjunction with this
enlistment confirms, in Item 48, that the only guarantee made to the
applicant was for training in military occupational specialty (MOS) 76P
(Stock Control and Accounting Specialist).  The applicant authenticated
this enlistment contract with his signature on the date of his enlistment.


5.  The Statements for Enlistment (DA Form 3286 and DA Form 3286-4)
included with the applicant's contract show that he was guaranteed an
initial assignment to the Stock Control and Accounting course.  Item 1a of
the DA Form 3286 confirms that all promises made to the applicant were
contained in Items 3, 37, and 48 of the DD Form 4.  The applicant
authenticated these statements with his signature on 16 March 1971.

6.  The applicant's Enlisted Qualification Record (DA Form 20) shows that
the applicant completed the Stock Control and Accounting Specialist course
at
Fort Lee, Virginia, and was awarded MOS 76P on 2 July 1971.  His record
shows he was promoted to private first class (PFC) on 28 July 1971, and
that this is the highest rank he attained while serving on active duty.
His record documents no acts of valor, significant achievement, or service
warranting special recognition.

7.  Headquarters, United States Army Quartermaster Center and Fort Lee
Special Orders Number 168, dated 11 August 1971, directed the applicant's
reassignment to the United States Army Overseas Replacement Center,
Oakland, California, with a report date of 2 September 1971, with an
ultimate assignment to the RVN.

8.  On 2 September 1971, the applicant failed to report for his overseas
assignment and became AWOL from his organization.  He remained away for
35 days until 7 October 1971, at which time he returned to military control
at
Fort Lee.  He again departed AWOL on 9 October 1971 and remained away for
52 days until returning to military control at Fort Lee on 30 November
1971.

9.  On 16 December 1971, a Charge Sheet (DD Form 458) was prepared
preferring a court-martial charge against the applicant for two
specifications of violating Article 86 of the Uniform Code of Military
Justice (UCMJ) by being AWOL from on or about 2 September 1971 through on
or about 7 October 1971 and from on or about 9 October 1971 through on or
about 30 November 1971.

10.  On 3 January 1972, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
effects of an UD and of the rights available to him.  Subsequent to
receiving this legal counsel, the applicant voluntarily requested discharge
for the good of the service, in lieu of trial by court-martial.

11.  In his request for discharge, the applicant acknowledged he understood
that if his discharge request was approved, he could be deprived of many or
all Army benefits, that he could be ineligible for many or all benefits
administered by the Department of Veterans Affairs (VA), and that he could
be deprived of his rights
and benefits as a veteran under both Federal and State law.  He further
indicated that he understood that he could encounter substantial prejudice
in civilian life by reason of an UD.

12.  On 2 February 1972, the separation authority approved the applicant's
separation under the provisions of chapter 10, Army Regulation 635-200, and
that he receive an UD.  On 11 March 1972, the applicant was discharged
accordingly.  The separation document (DD Form 214) he was issued at the
time shows he completed a total of 8 months and 25 days of creditable
active military service and that he accrued 87 days of time lost due to
AWOL.

13.  On 5 February 1980, the Army Discharge Review Board (ADRB) determined
the applicant's discharge was proper and equitable and it denied his
petition to upgrade his discharge.

14.  The applicant provides a self-authored letter indicating that his
discharge should be upgraded because he fulfilled all his military
obligations except for going to the RVN.  He claims his enlistment contract
guaranteed him training of his choice, that he could choose his duty
station, and that he would not have to go to the RVN.  He further states
that after exhausting all his options not to go to the RVN, to include
going to the Pentagon, he went AWOL twice.  He claims that the UD discharge
he received has drastically impacted his civilian life.

15.  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 U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the 3 year limit on filing to the
Army Board for Correction of Military Records (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.

16.  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.  A
discharge under other than honorable conditions is normally considered
appropriate. However, at the time of the applicant's separation the
regulation provided for the issuance of an UD.
17.  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 contention that his discharge should be upgraded
because his enlistment contract guaranteed that he would not be assigned to
the RVN was carefully considered.  However, there is insufficient evidence
to support his claim.

2.  The enlistment contract and the associated statements for enlistment
prepared for the applicant's 16 March 1971 enlistment in the RA guarantee
only that he would attend the Stock Control and Accounting, MOS 76P,
course.  They contain no assignment guarantees and did not guarantee he
would not be assigned to the RVN.  The applicant authenticated these
contract with his signature on the date of his enlistment in the RA.  As a
result, there is an insufficient evidentiary basis to support the
applicant's claim that he was guaranteed he would not have to go to the
RVN.

3.  The evidence of record confirms the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, he voluntarily requested
discharge in lieu of trial by court-martial.  All requirements of law and
regulation were met and that the rights of the applicant were fully
protected throughout the separation process. Further, the applicant’s
discharge accurately reflects his overall record of undistinguished
service.

4.  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.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 5 October 1980.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 4 October 1983.  However,
he failed to 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

___TMR _  __JCR __  __JRH __  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.




                                  _____Thomas M. Ray_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060011811                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/03/01                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1972/03/01                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |In Lieu of C-M                          |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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