RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 December 2007
      DOCKET NUMBER:  AR20070011158


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Ms. Marla J. N. Troup             |     |Member               |
|     |Mr. Thomas M. Ray                 |     |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, an upgrade of his undesirable
discharge (UD).

2.  The applicant states, in effect, that he be pardoned for not fully
understanding what he was doing at the time.  He claims he did not realize
that his discharge would result in his having a bad record and he now needs
help.  He states that he had never been away from home and just wanted to
go home.  He claims that when he graduated, he was shipped off to a
relative that mistreated him and he was sent to the Army.  He states that
he was not prepared to leave home and was scared to go into the Army
because he did not want to die.

3.  The applicant provides a self-authored statement and six third-party
statements in support of his application.

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 applicant's record shows that he was inducted into the Army and
entered active duty on 8 July 1969.  He was trained in and awarded military
occupational specialty (MOS) 11B (Infantryman), and private/E-2 (PV2) is
the highest rank he attained while serving on active duty.

3.  The applicant's record shows that upon his graduation from advanced
individual training in November 1969, he was assigned to the Overseas
Replacement Station, Oakland, California, for movement to the Republic of
Vietnam (RVN).

4.  The applicant's record shows that he accrued 893 days of time lost
during three separate periods of being absent without leave (AWOL).
5.  On 19 January 1970, the applicant accepted non-judicial punishment
(NJP) under the provisions of Article 15 of the Uniform Code of Military
Justice (UCMJ) for being AWOL from 15 December 1969 through 14 January
1970, after failing to report to the Overseas Replacement Station, Oakland,
California, for movement to the Republic of Vietnam (RVN).  His punishment
for this offense was a reduction to private/E-1 (PV1), forfeiture of $60.00
per month for 2 months and 30 days of restriction.

6.  On 3 February 1971, the applicant accepted NJP for being AWOL from
26 January 1971 through 29 January 1971.  His punishment for this offense
was a forfeiture of $21.00.

7.  On 25 July 1973, a Charge Sheet (DD Form 459) was prepared preferring a
court-martial charge against the applicant for violating Article 86 of the
UCMJ by being AWOL from on or about 5 March 1971 through on or about 23
July 1973.

8.  On 27 July 1973, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial under
circumstances that could lead to a bad conduct or dishonorable discharge,
of the effects of a discharge request for the good of the service, and of
the rights available to him.  Subsequent to this counseling, he voluntarily
requested discharge for the good of the service in lieu of trial by court-
martial.

9.  In his discharge request, the applicant acknowledged that he could
receive an UD and that 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, and that he could be deprived of his rights
and benefits as a veteran under both State and Federal law.  He further
indicated that he understood he could encounter substantial prejudice in
civilian life by reason of an UD.  The applicant submitted a statement
supporting his discharge request in which he indicated that he had 1 year
and 8 months of good time, had accepted two Article 15s and had 1 court-
martial, and was then pending charges for being AWOL for 2 years and 4
months.  He stated that it was best for him to request an UD and he
confirmed he did understand what that meant.  He further stated that if he
would not obey orders and if he went back, he would go AWOL again.  He
concluded by stating that he believed an UD was the best solution.

10.  On 22 August 1973, the separation authority approved the applicant's
request for discharge and directed he receive an UD.  On 28 August 1973,
the applicant was discharged accordingly.  The DD Form 214 he was issued
shows he completed a total of 1 year, 7 months and 28 days of creditable
active military service and that he accrued 893 days of time lost due to
AWOL.
11.  The applicant provides eight third-party supporting statements from
family members, friends and employers.  These individual all attest to his
good character, post service conduct and employment record.

12.  There is no indication that the applicant applied to the Army
Discharge Review Board for an upgrade of his discharge within that board's
15-year statute of limitations.

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations) 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.

14.  The same regulation states that an under other than honorable
conditions (UOTHC) discharge normally is appropriate for a Soldier who is
discharged in lieu of trial by court-martial.  However, the separation
authority may direct a general discharge (GD) if such is merited by the
Soldier's overall record during the current enlistment.  An honorable
discharge (HD) is not authorized unless the Soldier's record is otherwise
so meritorious that any other characterization clearly would be improper.
At the time of the applicant's discharge the regulation provided for the
issuance of an UD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his discharge should be upgraded
because of his lack of understanding of the impact of his discharge, his
current health problems and his good post service conduct, and the
supporting statements he provided were carefully considered.  However,
these factors are not sufficiently mitigating to support granting the
requested relief.

2.  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, the applicant voluntarily
requested discharge from the Army 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.

3.  The record further shows that the applicant voluntarily requested
discharge in order to avoid a court-martial that could have resulted in his
receiving a punitive discharge, only after he had consulted with legal
counsel and confirmed that he fully understood the ramifications of
receiving an UD.  He also stated that if he were required to return to
service, he would not obey orders and that he would go AWOL again.
Further, the UD he received was normal and appropriate under the regulatory
guidance, and his short and undistinguished record of service clearly did
not support a GD or HD at the time, nor does it support an upgrade now.
Although the applicant's post service conduct, as outlined in the
supporting statements he provides, is noteworthy, this factor alone does
not support an upgrade of his discharge given his record of short and
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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JNS__  __MJNT    __TMR__  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.




                                  _____John N. Slone  ____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070011158                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/12/DD                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1973/08/28                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |In Lieu of C-M                          |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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