ABCMR Memorandum of                                                             AR2002082971
Consideration (cont)

MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  30 September 2003 
	DOCKET NUMBER:   AR2002082971

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  

| Mr. Carl W. S. Chun | | Director
| Ms. Joyce A. Wright | | Analyst

  The following members, a quorum, were present:

| Mr. Raymond J. Wagner | | Chairperson
| Ms. Margaret V. Thompson | | Member
| Mr. Melvin H. Meyer | | Member

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his undesirable discharge be upgraded.  He states that he served in Vietnam for one year and returned to the US; however, he was not provided the opportunity to take leave.  He also states that he has numerous medical conditions that are secondary to his exposure to Agent Orange and other herbicides used in Vietnam.  In support of his application, he submits two letters from his former employers, copy of his Veterans Administration (VA) Rating Decision, dated 5 November 2002, and a copy of his DD Form 214 (Report of Transfer or Discharge), dated 26 February 1968.

COUNSEL CONTENDS:  American Legion, as counsel for the applicant, states that the applicant's discharge was too harsh and that it is an injustice for the applicant to continue suffering from the resulting consequences 35 years later.  He received four special courts-martial and was later discharged.  He submitted statements from his former employer that attested to his dependable and honest service.  Counsel also states that the applicant's letter from the VA considered his first period of service and not his second period of service, which he served in Vietnam and was separated under conditions other than honorable.  He applied for benefits for a service-connected disability, which were caused by exposure to herbicides.  The VA would not consider his second period of service for benefits due to his discharge being characterized as under other than honorable conditions.  Counsel further states that the Board’s attention is invited to the applicant’s DD Form 149 and attached statements and that the applicant has clearly pointed out the errors and injustices that occurred in his case.  Counsel requested that the Board’s final decision reflect sound, equitable principles consistent in law, regulation, policy, and discretion.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show he enlisted on 28 June 1963.  He continued to serve until he was honorably discharged on 11 July 1965, in order to reenlist.  He reenlisted on 12 July 1965.  He served in Vietnam from 6 May 1966 to 5 May 1967.

Between 21 February and 6 September 1966, he received nonjudicial punishment on three occasions under Article 15, Uniform Code of Military Justice (UCMJ), for being drunk, for wrongfully engaging in a fight, for being disorderly, and for failure to go to his appointed place of duty.  His punishments consisted of forfeitures of pay and extra duty.

He was convicted by four special courts-martial of wrongfully and willfully discharging a firearm, of violation of a lawful general regulation; of AWOL from   1 to 21 August 1967 (21 days) and from 21 December 1967 to 17 January 1968 (15 days).  His sentences consisted of forfeitures of pay, confinement at hard labor, and a reduction to the pay grade of E-1.

The applicant was in civil confinement from 22 August to 21 September 1967 for public drunkenness.

On 26 October 1967, the applicant was notified by his commander that he was being recommended for discharge under the provisions of Army Regulation 
635-212, for unfitness.  After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

On 26 October 1967, the applicant underwent a mental evaluation which determined that he had no psychiatric diseases, was mentally responsible, could distinguish right from wrong, and that he possessed sufficient mental capacity to participate in administrative or judicial proceedings.  

On 10 January 1968, the applicant’s commander submitted a recommendation to separate the applicant from the service under the provisions of Army Regulation 635-212, for unfitness.  He based his recommendation on the applicant's frequent incidents of a discreditable nature with civil or military authorities.  

On 16 February 1968, the separation authority approved the recommendation for discharge and directed that he be furnished an Undesirable Discharge.  The applicant was discharged on 26 February 1968.  He had a total of 3 years, 11 months, and 5 days of creditable service and had 264 days of lost time due to AWOL and confinement. 

The applicant provided a copy of a VA Rating Decision, dated 5 November 2002. The rating decision denied his claim for several medical conditions addressed by the applicant.  His second period of service was not addressed due to his character of separation under conditions other than honorable that prevented him from obtaining VA benefits.  The applicant’s medical records are unavailable for review by this Board.

The two letters provided by the applicant's former employers attest to his dependable and honest service.

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

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 26 February 1968, the date of separation.  The time for the applicant to file a request for correction of any error or injustice expired on 26 February 1971.

The Board has noted the applicant and counsel's contentions.  The evidence of record shows that he served in Vietnam for one year and was seen by the VA who denied his claim for several medical conditions.

The application is dated 20 November 2002 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__rw___  ___mt__  __mm___  CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID | AR2002082971
SUFFIX |
RECON |
DATE BOARDED | 20030930
TYPE OF DISCHARGE | UOTHC
DATE OF DISCHARGE | 19680226
DISCHARGE AUTHORITY | AR .635-212
DISCHARGE REASON |
BOARD DECISION | DENY
REVIEW AUTHORITY |
ISSUES         1. | 189
2. |
3. |
4. |
5. |
6. |