RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 8 January 2004
         DOCKET NUMBER: AR2003088382


         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. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Ms. Kathleen A. Newman		Chairperson
Mr. John T. Meixell		Member
Ms. Linda M. Barker		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).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests that his undesirable discharge (UD) be upgraded to a general discharge under honorable conditions.

2. The applicant states, in essence, that he volunteered for Vietnam and that his performance, conduct and evaluations were excellent until he went to Vietnam and returned suffering from post-traumatic disorder (PTSD). He was unjustly accused and sentenced to serve 1 year in civil confinement for a crime that he did not commit. Currently, he suffers from PTSD and diabetes mellitus type II. Both diseases are related to his service in Vietnam. He is requesting the upgrade of his discharge so that he may be able to receive benefits and medical treatment from the Department of Veterans Affairs (DVA).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1. The Disabled American Veterans counsel requests that the Board take into consideration the applicant's impulsiveness associated with his youthfulness and upgrade his discharge based on his contentions and the evidence contained in the available record.

2. Counsel provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an injustice which occurred on 10 March 1972. The application submitted in this case is dated 9 March 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. 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 limitation 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. On 2 April 1968, both of the applicant’s parents signed a declaration of parental consent for him to enlist in the military. On 16 April 1968, at age 17, the applicant enlisted in the Regular Army for a period of 3 years.

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4. The applicant left his training unit at Fort Leonard Wood, Missouri from
20-31 May 1968 in an absent without leave (AWOL) status. On 6 June 1968, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), was imposed against him for this period of AWOL. His punishment included the forfeiture of $45 pay per month for 2 months and 14 days on restriction.

5. On 6 June 1968, the applicant again left his training unit at Fort Leonard Wood in an AWOL status and he remained AWOL until 14 June 1968. On 1 July 1968, he was convicted by a summary court-martial of this period of AWOL. His sentence included the forfeiture of $63 pay per month for 1 month and to perform hard labor without confinement for 45 days.

6. Following completion of all required military training; the applicant was awarded military occupational specialty (MOS) 12B (Combat Engineer). He was assigned to Vietnam and he served with Company B, 31st Engineer Battalion from 10 December 1968-9 December 1969. He returned to the United States and he was assigned to Fort Benning, Georgia on 6 February 1970.

7. On 27 February 1970, NJP was imposed against the applicant for failure to yield to oncoming traffic while operating a privately-owned vehicle on 16 February 1970. His punishment included the forfeiture of $25 pay per month for 1 month and 14 days of extra duty.

8. The applicant was AWOL from 30 March 1970 through 4 March 1971;
3 May-27 September 1971 and from 9 November 1971-16 February 1972. On an unknown date, court-martial charges were preferred against him for these offenses. The applicant consulted with legal counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200. He acknowledged that he understood that he could receive a UD. He also acknowledged that he understood the ramifications of receiving a UD. The available record does not contain a statement submitted by the applicant at the time of the request.

9. On 2 November 1971, the applicant was psychiatrically and mentally cleared for administrative separation or disciplinary action.

10. On 1 March 1972, the Staff Judge Advocate (SJA) recommended that the applicant's request for discharge be approved. The SJA indicated that the applicant stated at the time of apprehension that he went AWOL because of marital difficulties and that he desired a discharge. The SJA believed the Army's best interests would be served by the applicant's immediate separation.

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11. The applicant's conduct and efficiency were rated excellent between April and August 1968. Between September and October 1968, his conduct was rated fair and his efficiency was rated excellent. Between December 1968 and February 1970, both the applicant's conduct and efficiency were rated excellent. Both his conduct and efficiency were rated unsatisfactory between April 1970 and March 1972.

12. On 24 February 1972, the applicant’s commander recommended that his request for discharge be approved. The separation authority approved separation with a UD and directed that the applicant be reduced to pay grade
E-1.

13. On 8 March 1972, the applicant authenticated a statement of medical condition that indicates he had undergone a medical examination within the past 3 days and that there had been no change in his medical condition.

14. On 10 March 1972, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200 with a UD. His DD Form 214 shows that he had completed 2 years, 2 months and 26 days of creditable active military service and he had 972 days of lost time.

15. There is no evidence that the applicant ever applied to the Army Discharge Review Board for review of his discharge under that board's 15-year statute of limitations.

16. 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 a UD.

DISCUSSION AND CONCLUSIONS:

1. The applicant stated reasons for going AWOL were marital problems and the desire to no longer serve in the Army. If the applicant was experiencing marital problems, he had many legitimate avenues through which to obtain assistance in dealing with those problems without committing the misconduct offenses that led to the separation action under review.

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2. The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress. The type of discharge directed and the reasons for discharge were appropriate considering the facts of the case.

3. The applicant underwent a medical examination prior to separation and there was no evidence that he had any medical or mental problems. The applicant was cleared, medically and psychiatrically, for separation, administrative, or legal action.

4. There is no evidence available that supports the applicant's contention that he was unjustly accused and sentenced to serve in civil confinement for a crime that he did not commit.

5. The applicant was young and he may have acted impulsively; however, he met entrance qualification standards to include age with a waiver. Further, there is no evidence that the applicant was any less mature than other soldiers of the same age who successfully completed their military service obligation.

6. Entitlement to DVA benefits is not a matter under the purview of this Board, but rests with the DVA. The applicant's lack of entitlements does not provide a basis upon which to grant an upgrade of a discharge.

7. Records show the applicant should have discovered the error or injustice now under consideration on 10 March 1972; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 9 March 1975. 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 file in this case.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

___kan__ __jtm___ __lmb___ DENY APPLICATION

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not 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.



                           Kathleen A. Newman
                  ______________________
                  CHAIRPERSON































INDEX

CASE ID	AR2003088382
SUFFIX
RECON
DATE BOARDED	20040108
TYPE OF DISCHARGE	(UD)
DATE OF DISCHARGE	19720310
DISCHARGE AUTHORITY	AR635-200, CH 10
DISCHARGE REASON	A70.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.7000
2.
3.
4.
5.
6.