RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      27 September 2007
      DOCKET NUMBER:  AR20060016584


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Luis Almodova                 |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. Richard Dunbar                |     |Chairperson          |
|     |Mr. Chester A. Damian             |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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
honorable.

2.  The applicant states, in effect, that he went into the Army in 1972
when he was only 18 years of age.  He was having trouble but he went to
jungle training in the Canal Zone.  He was given orders for Vietnam.  Half
the company did not show up but he did, ready for duty.  They were then put
on stand down.  After that he went absent without leave (AWOL); not too
long; a weekend.  They then offered him a discharge and he took it.  He is
not after anything else other than to be able to hold his head up.  He adds
that his older brother went to Vietnam and he told him some things, but he
was still going to go but he was scared.  Most of all, he was only 18 years
old.

3.  In a DD Form 293, Application for the Review of Discharge from the
Armed Forces of the United States, the applicant submitted, on the same
date as his DD Form 149, Application for Correction of Military Record, he
repeated most of what he stated to the Board in his DD Form 149, and added
that he is now 52 years of age. In this form, he added he got into trouble
before he went to the Canal Zone - just an Article 15 – no court-martial.
They gave him orders for Vietnam.

4.  The applicant provides no additional documentary evidence in support of
his request for an upgrade of his discharge.

CONSIDERATION OF EVIDENCE:

1.  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 also
allows the Army Board for Correction of Military Records (ABCMR) to excuse
an applicant’s failure to timely file within the 3-year statute of
limitations if the ABCMR determines it would be in the interest of justice
to do so.  While it appears the applicant did not file within the time
frame provided in the statute of limitations, the ABCMR has elected to
conduct a substantive review of this case and, only to the extent relief,
if any, is granted, has determined it is in the interest of justice to
excuse the applicant’s failure to timely file.  In all other respects,
there are insufficient bases to waive the statute of limitations for
timely filing.

2.  The evidence shows the applicant enlisted in the Regular Army, for two
years, on 29 June 1973.  On the date of his enlistment, the applicant was
17 years, 10 months, and 21 days of age.  The applicant was given parental
consent for his enlistment in the Regular Army.
3.  The record shows the applicant successfully completed basic combat
training at Fort Leonard Wood, Missouri, and his advanced individual
training at Fort Eustis, Virginia.  On completion of his advanced training,
he was awarded the military occupational specialty 57H, Cargo Handler.

4.  On 6 December 1972, the applicant received nonjudicial punishment,
under the provisions of Article 15 of the Uniform Code of Military Justice
(UCMJ), for absenting himself without authority on 29 November 1972 and
remaining so absent until 30 November 1972.  The imposed punishment was a
forfeiture of $70.00, and restriction and extra duties for 7 days.  The
applicant did not appeal the punishment.

5.  On 8 January 1973, the applicant received an Article 15, under the
provisions of the UCMJ, for absenting himself without authority on 28
December 1972 and remaining so absent until 3 January 1973.  The imposed
punishment was a reduction in pay grade to pay grade E-1, forfeiture of
$67.00, and restriction and extra duties for 14 days.  The applicant did
not appeal the punishment.

6.  On 26 February 1973, the applicant received an Article 15, under the
provisions of the UCMJ, for absenting himself without authority on 25
January 1973 and remaining so absent until 5 February 1973.  The imposed
punishment was a forfeiture of $100.00 for a period of two months
(suspended for 90 days); and extra duties for 15 days.  The applicant did
not appeal the punishment.

7.  The applicant received an Article 15 on 14 March 1973.  Although he was
found guilty, the commander did not impose any new punishment.  Instead, he
vacated the suspension of forfeiture of $100.00 pay, per month, for two
months which had been suspended for 90 days on 26 February 1973.

8.  On 19 March 1973, the applicant received an Article 15, under the
provisions of the UCMJ, for going from his appointed place of duty on 9
March 1973.  The imposed punishment was a forfeiture of $50.00 per month
for two months (suspended for 90 days), and restriction and extra duty for
15 days.  The applicant did not appeal the punishment.

9.  On 13 July 1973 the applicant's unit commander recommended he be barred
from reenlistment.  In his recommendation, the unit commander reported the
applicant had been a constant discredit to the unit and to the United
States Army.  He could not be relied upon to be present for any unit
activities.  His record of absences clearly pointed out his refusal to
adequately perform as a Soldier.
Further retention of the individual in the unit would create an adverse
morale factor among his peers and an additional administrative burden for
the company. He strongly recommended the applicant be given a
rehabilitative transfer with a long range goal of correcting his
substandard performance or eliminating him from further service.

10.  The applicant was given an opportunity to acknowledge the
recommendation for his bar to reenlistment.  He did so and elected not to
submit a statement in his own behalf.

11.  The applicant's chain of command recommended approval of the
recommendation for his bar to reenlistment and on 3 August 1973, the
approval authority, a major general, approved the recommendation.  In
addition, he also recommended a further evaluation be made for the
applicant's possible elimination from the Army.

12.  On 17 July 1973, the applicant received an Article 15, under the
provisions of the UCMJ, for absenting himself without authority on 5 July
1973 and remaining so absent until 7 July 1973.  The imposed punishment
was a forfeiture of $50.00 and restriction and extra duty for 14 days.
The applicant did not appeal the punishment.

13.  On 8 August 1973, charges were preferred against the applicant for
failing to go to his prescribed place of duty, extra duty, and restriction
in the orderly room, on 1-4 August 1973 and 7 August 1983.

14.  On 17 September 1973, charges were preferred against the applicant for
absenting himself without authority on 12 September 1973 and remaining so
absent until 17 September 1973.  A recommendation for a special court-
martial was made.

15.  Prior to completing his request for discharge for the good of the
service, the applicant was afforded the opportunity to consult with
counsel.  He consulted with
counsel on 21 September 1973 and was fully advised of the nature of his
rights
under the UCMJ.  Although he was furnished legal advice, he was informed
that the decision to submit a request for discharge for the good of the
service was his own.

16.  On 21 September 1973, the applicant voluntarily submitted a request
for discharge for the good of the service.  He stated he had not been
coerced with respect to his request for discharge and had been advised of
the implications that
were attached to his request and that by submitting his request he
understood if his request for discharge were accepted, he could be
discharged under honorable conditions and furnished an undesirable
discharge certificate.

17.  He stated he understood that as a result of his discharge he could be
deprived of many or all Army benefits that he might be eligible for, that
he might 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 understood that he could expect to encounter
substantial prejudice in civilian life by reason of an undesirable
discharge.

18.  The applicant was advised that he could submit a statement in his own
behalf, which would accompany his request for discharge.  The applicant
elected not to submit a statement in his own behalf.

19.  On 28 September 1973, the applicant underwent a separation physical
examination.  The applicant was found to be qualified for separation with a
P-1, U-1, L-1, H-1, E-1 and S-1 physical profile.

20.  The applicant's chain of command unanimously recommended approval of
his request for discharge for the good of the service.  The document
indicating the commanding general's approval is not in the applicant's
service personnel record; however, on 11 October 1973, Special Orders
Number 196, paragraph 13, were published by Headquarters, U.S. Army
Transportation Center and Fort Eustis, Fort Eustis, Virginia, ordering his
discharge under other than honorable conditions, for the good of the
service.  The effective date of his discharge was to be 12 October 1973.

21.  The applicant was discharged with an under other than honorable
conditions discharge, in the rank and pay grade of Private, E-1, on 12
October 1973, under the provisions of Army Regulation (AR) 635-200, Chapter
10, for the good of the service.

22.  On the date of his discharge, the applicant had completed 1 year,
2 months, and 21 day, creditable active military service, with 23 days lost
time.

23.  There is no evidence that the applicant applied to the Army Discharge
Review Board (ADRB) for an upgrade of his discharge within its 15-year
statute of limitations.

24.  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.  A discharge under other
than honorable conditions 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.

25.  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.

26.  AR 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 separation specifically allows such characterization.

27.  In his application, the applicant stated that he was only 18 years of
age when he went to jungle training in the Canal Zone and was given orders
for Vietnam.  He indicated half the company did not show up, but he did,
ready for duty.  There was a stand down and they offered him that
discharge and he took it.

DISCUSSION AND CONCLUSIONS:

1.  A thorough search of the applicant's service records was conducted.
There is no indication he attended or completed jungle training in the
Canal Zone or that he was ever alerted for an assignment in Vietnam.

2.  The applicant's statement there was a stand down and "they" offered
him an opportunity to be discharged from the Army, and he took it, is not
supported by the evidence.  The evidence shows the applicant repeatedly
absented himself without leave or authority and did not go to his
appointed place of duty, even when that
duty was punishment that had been imposed upon him for his misconduct.
While he stated he received, "an Article 15 and no court-martial."  The
evidence shows he received multiple non-judicial punishments, under
Article 15, of the UCMJ, and it was his referral to trial by court-martial
which led to his voluntarily applying for discharge, for the good of the
service, to avoid trial by court-martial.

3.  As a defense for his actions and misconduct, the applicant submits that
he was 18 years of age; however, his reliance on his age as an excuse for
not conforming to Army standards of conduct and performance of duty is
without merit.  The evidence shows he enlisted, with parental consent, when
he was 17 years, 10 months, and 21 days of age; however, there is no
evidence he was any less mature than other Soldiers of the same or of a
younger age who served successfully and completed their term of service.

4.  The 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.

5.  The evidence shows that all requirements of law and regulation were met
and the rights of the applicant were fully protected throughout the
separation process. The characterization of service for this type of
discharge is normally under other than honorable conditions and the
evidence shows that the applicant was aware of that prior to requesting
discharge.  It is believed that the reason for discharge and the
characterization of service were both proper and equitable.

6.  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.

7.  In view of the foregoing, there is no basis for granting the
applicant's request for an upgrade of his under other than honorable
conditions discharge.







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RAD_  __CD____  __EM___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




                                  ____Richard T. Dunbar_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060016584                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070927                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19731012                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 10                  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |144.9301                                |
|3.                      |144.9231                                |
|4.                      |144.7100                                |
|5.                      |                                        |
|6.                      |                                        |


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