RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 June 2007
      DOCKET NUMBER:  AR20070000950


      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      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Carmen Duncan                 |     |Chairperson          |
|     |Mr. Michael J. Flynn              |     |Member               |
|     |Mr. Jeffrey C. Redmann            |     |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 discharge be upgraded to honorable.

2.  The applicant states he made a mistake that was immature on his part
upon returning from Vietnam.  After going absent without leave (AWOL), he
had a fear of returning to his unit and did not know what to do, so he
remained at home.  He has had many regrets over the past 35 years
concerning his actions.  He was a good Soldier until he returned from
Vietnam and was unable to make adjustments.  Since his discharge, he has
also been a productive citizen.

3.  The applicant provides ten letters of support and a copy of his DD Form
214 (Armed Forces of the Untied States Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 6 March 1973.  The application submitted in this case is dated
11 January 2007.

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 26 May 1949.  He enlisted in the Regular Army
on 7 November 1967.  He completed basic combat training and advanced
individual training and was awarded military occupational specialty 64A
(Light Vehicle Driver).  He arrived in Vietnam on or about 19 May 1968.  He
was promoted to specialist five, E-5 on 27 April 1969.  He departed Vietnam
on 8 May 1969.  He was awarded an Army Commendation Medal for meritorious
service upon departing Vietnam.  He was reassigned to Fort Leonard Wood,
MO.

4.  On 27 June 1969, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for violating a
lawful regulation by passing a vehicle on the right.  On 2 July 1969, he
accepted NJP under Article 15, UCMJ for failing to go to his appointed
place of duty.

5.  The applicant departed AWOL on 15 September 1969 and returned to
military control on 13 October 1969.

6.  On 24 October 1969, the applicant accepted NJP under Article 15, UCMJ
for missing morning formation.

7.  On 6 November 1969, the applicant was convicted, in accordance with his
plea, by a summary court-martial of the September/October 1969 AWOL.  His
approved punishment was a reduction to specialist four, E-4 and a
forfeiture of $105.00 pay per month for one month.

8.  On 18 December 1969, the applicant accepted NJP under Article 15, UCMJ
for failing to attend reveille formation.

9.  On 17 March 1970, the applicant departed AWOL.  He returned to military
control on 17 January 1973.  He departed AWOL again on 23 February 1973 and
returned to military control on 6 March 1973.

10.  The applicant’s discharge packet is not available.

11.  On 6 March 1973, the applicant was discharged, with a discharge
characterized as under other than honorable conditions, in pay grade E-1,
under the provisions of Army Regulation 635-206.  He had completed 2 years,
   4 months, and 2 days of creditable active service and had 263 days of
lost time plus an additional 813 days of lost time subsequent to his normal
expiration of term of service.

12.  Army Regulation 635-206, in effect at the time, set forth the basic
authority for the separation of enlisted personnel for misconduct
(fraudulent entry, conviction by civil court, and absence without leave or
desertion).  That regulation provided, in pertinent part, for the discharge
of enlisted personnel for misconduct when it was determined there was
substantial evidence to support a determination of desertion or absence
without leave; the unauthorized absence had continued for more than 1 year;
retention was not considered desirable or in the best interest of the
government; and trial by court-martial on a charge of desertion or AWOL was
waived or deemed inadvisable by the general court-martial convening
authority.

13.  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, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.

14.  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 contentions have been noted.  It is noted that his
service in Vietnam was sufficiently meritorious to warrant his being
awarded an Army Commendation Medal upon leaving the country.  However, it
is also noted that the applicant did return to military control in October
1969, after a period of AWOL of almost 30 days, so his contention that
after going AWOL he had a fear of returning to his unit and did not know
what to do, so he remained at home, is not entirely credible.

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

3.  The letters of support he provided and his good post-service conduct
have been considered; however, considering the length of the applicant’s
AWOL, the letters of support and his good post-service conduct  are
insufficient to warrant granting the relief requested.  Again, considering
the length of his AWOL, the characterization of his discharge as under
other than honorable conditions was appropriate.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 March 1973; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on           5 March 1976.  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

__cd____  __mjf___  __jcr___  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.




                                  __Carmen Duncan_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070000950                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070607                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19730306                                |
|DISCHARGE AUTHORITY     |AR 635-206                              |
|DISCHARGE REASON        |A63.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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