RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            06 MAY 2004
      DOCKET NUMBER:   AR2003096635


      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. Carl W. S. Chun               |     |Director             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


  The following members, a quorum, were present:

|     |Mr. Thomas D. Howard, Jr.         |     |Chairperson          |
|     |Mr. James E. Anderholm            |     |Member               |
|     |Mr. Ronald J. Weaver              |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 under other than honorable conditions
discharge be upgraded.

2.  The applicant states, in effect, that he was coerced into signing his
discharge papers and did so by deception, misinformation, and intimidation.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 24 February 1971.  The application submitted in this case is
dated 30 July 2003.

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.  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.

3.  Records available to the Board indicate that the applicant entered
active duty on 21 September 1967.  While undergoing basic combat training,
he was punished under Article 15 of the Uniform Code of Military Justice
for stealing two pair of wool trousers from another Soldier.  His
punishment included forfeiture, extra duty, restriction and an oral
reprimand.  While undergoing advanced individual training, he was convicted
by a special court-martial of striking another Soldier.  His punishment
included reduction to pay grade E-1 and forfeiture of $60.00 per month for
2 months.

4.  Following completion of training, he was assigned to Vietnam as an
infantryman and by April 1968 he had been promoted to pay grade E-3.

5.  The applicant’s records indicate that he had a series of AWOL (absent
without leave) periods while in Vietnam commencing in May 1968 and
ultimately was convicted by a general court-martial of four counts of AWOL
totaling more than 200 days, impersonating an Air Force NCO
(noncommissioned officer), and having in his possession an unauthorized
identification card and ration control card.  He was sentenced to a bad
conduct discharge, total forfeitures, confinement at hard labor for 4
years, and reduction to the lowest enlisted grade. The convening authority
reduced the confinement portion of the sentence to 2 years.  Ultimately the
sentence was remitted in excess of 18 months.

6.  The applicant served his confinement at Fort Leavenworth, Kansas.

7.  On 3 February 1971 orders were issued by Headquarters, Fort
Leavenworth, stating that the “findings of guilty and the sentence as
promulgated…were set aside, 13 November 1970, and a rehearing authorized.”
A statement in the applicant’s file indicates that he was placed on excess
leave pending rehearing of his case but because of economic problems, he
returned from excess leave and was billeted in the Special Processing
Detachment at Fort Leavenworth.

8.  On 16 February 1971 the applicant submitted a request to be
administratively discharged under the provisions of Army Regulation 635-
200, Chapter 10 in lieu of trial by court-martial.  The applicant’s request
notes that he had “not been subjected to coercion with respect to this
request for discharge, and [that he had] been advised of the implications
that are attached to it.”

9.  On 19 February 1971 the applicant’s request for discharge was approved
and the discharge authority directed that the applicant be issued an
Undesirable Discharge Certificate.

10.  On 22 February 1971 orders were issued by Headquarters, Fort
Leavenworth noting that “it having been determined that a rehearing is
impractical, the charges and specifications are dismissed.”

11.   The applicant’s approved administrative separation action was
executed on 24 February 1971.

12.  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 undesirable discharge.

13.  On 5 November 1973, 22 July 1977, and 27 March 1980 the Army Discharge
Review Board denied the applicant’s request to have his discharge upgraded
and concluded that his discharge was both equitable and proper.


DISCUSSION AND CONCLUSIONS:

1.  Contrary to the applicant’s contention, there is no evidence, and he
has not provided any, that he was coerced into requesting discharge in lieu
of trial by court-martial.  Rather, it appears that having been placed in
an excess leave status, he likely felt that requesting discharge was the
most expedient manner for severing his ties with the military.

2.  While it is unclear from available documents why a rehearing was
authorized in the applicant’s general court-martial action and that the
charges were ultimately dismissed because it was “impractical” to rehear
the case, it is possible that the charges were dismissed once the applicant
submitted his request for discharge in lieu of trial by court-martial.  At
that point there would have been no reason to pursue the rehearing.

3.  In the absence of evidence to the contrary, the applicant’s
administrative separation appears to have been accomplished in accordance
with the applicant’s desires with no indication that his rights were
jeopardized in any way.

4.  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 that requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration 27 March 1980; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
26 March 1983.  However, 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 RELIEF

________  ________  ________  GRANT FORMAL HEARING

__TDH __  __JEA   _  __RJW__  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 D. Howard, Jr.___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003096635                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040506                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |