RECORD OF PROCEEDINGS


      IN THE CASE OF:



      BOARD DATE:            22 APRIL 2004
      DOCKET NUMBER:   AR2004100831


      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. James C. Hise                 |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Frank C. Jones II             |     |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 undesirable discharge be upgraded.

2.  The applicant states, in effect, that he was not afforded counseling
for the problems he encountered after returning to the United States from
Vietnam and contends that his discharge is unfair.  He states that after 18
months of combat duty he could not "conform to the regimentation required
in stateside duty" and feels that he "did nothing serious enough to deserve
a less than honorable discharge."  He states that his health is now failing
and he needs his discharge upgraded in order to be admitted to the Ohio
Veterans Home.

3.  The applicant provides copies of his two awards of the Purple Heart,
his award of the Bronze Star Medal with "V" device, his Army Commendation
Medal, and a certificate of service in Vietnam with the 1st Battalion, 2nd
Infantry, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an injustice which occurred
on
17 March 1969.  The application submitted in this case is dated 12 November
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.  Records available to the Board indicate that the applicant entered
active duty on 12 November 1965.  He successfully completed basic combat
training.  However, he was convicted by a special court-martial at Fort
Knox, Kentucky in March 1966 for breaking restraint and two days of AWOL
(absent without leave) while undergoing advanced individual training.  His
punishment included forfeiture and restriction.

4.  In April 1966 the applicant arrived in Vietnam and was assigned to an
infantry unit as an infantryman.  By January 1967 he had been promoted to
pay grade
E-4.

5.  As a result of combat actions on 27 February 1967, the applicant was
awarded a Purple Heart and Bronze Star Medal with "V" device.  He was
awarded an Army Commendation Medal for meritorious service during the
period September 1966 to April 1967, and in July 1967 he was awarded his
second Purple Heart.

6.  However, in late July 1967 the applicant was punished under Article 15
of the Uniform Code of Military Justice for disobeying an order not to
travel to Saigon and the Cholon area in Vietnam.  His punishment included
forfeiture and restriction.

7.  On 11 September 1967, the applicant was discharged for the purpose of
immediate reenlistment after receiving a waiver for his 1966 period of
AWOL.

8.  Shortly after his reenlistment, in September 1967, he was punished
again under Article 15 of the Uniform Code of Military Justice after being
AWOL between 16 and 21 September 1967 and for sleeping while on guard duty.
 His punishment included reduction to pay grade E-3.

9.  The applicant was punished two more times under Article 15 of the
Uniform Code of Military Justice prior to departing Vietnam in December
1967.  He was punished in October 1967 for failing to report to duty,
resulting in his reduction to pay grade E-1, and in November 1967 for
failing to report to duty and for wearing the insignia of a sergeant (E-5)
on his uniform.

10.  Upon the applicant’s return to the United States in December 1967, he
was assigned to Fort Polk, Louisiana.  His records indicate that prior to
arriving at Fort Polk he was placed in an AWOL status and apprehended by
civilian authorities on 29 January 1968.  A FBI (Federal Bureau of
Investigation) report notes the applicant was charged with grand theft
auto.  He was transferred from civilian to military confinement on 7
February 1968.

11.  While at Fort Polk, he was convicted by three more special courts-
martial, twice as a result of AWOL periods and once for escaping from
confinement.  Statements contained in his file indicate that he was
counseled several times by members of his chain of command regarding his
failing to report for duty as scheduled and for his misconduct and
violation of Army Regulations.  The statements indicate that the applicant
was advised that he could be subject to administrative separation and an
undesirable discharge.

12.  The FBI report notes the applicant was charged with carrying a
concealed deadly weapon on 23 September 1968 in Princeton, New Jersey.  At
the time, the applicant was serving his confinement sentence at Fort Dix,
New Jersey.

13.  On 15 January 1969 the applicant underwent a psychiatric evaluation.
The evaluation noted that the applicant was free from mental defect, was
able to distinguish right from wrong and to adhere to the right, and that
he was cleared for any action deemed appropriate by his command.
14.  On 19 February 1969 the applicant was notified by the commander of the
Special Processing Detachment at Fort Dix, New Jersey that he was
initiating action to administratively separate the applicant from active
duty under the provisions of Army Regulation 635-212, for unfitness.  The
applicant consulted with counsel, acknowledged the ramifications of an
undesirable discharge, and waived his attendant rights.

15.  The discharge was ultimately approved, and on 17 March 1969 the
applicant was discharged under other than honorable conditions and issued
an undesirable discharge certificate.

16.  Army Regulation 635-212, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  It 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's combat decorations are noted, however, evidence
available to the Board indicates that the applicant's incidents of
misconduct were not limited to his return to the United States following
his tour of duty in Vietnam.  The applicant was convicted by a special
court-martial prior to being assigned to Vietnam and was punished numerous
times under Article 15 of the Uniform Code of Military Justice while in
Vietnam.  His court-martial convictions after his return to the United
States were merely a continuation of a pattern of misconduct established
previously.

2.  His argument that he was not afforded counseling is also without
foundation.  The record shows that he was counseled by members of his chain
of command and underwent a psychiatric evaluation prior to his discharge.

3.  In order to justify correction of a military record the applicant must,
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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 19 March 1969; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
18 March 1972.  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

__JCH __  __LDS __  __FCJ __  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.




            _____James C. Hise_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100831                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040422                                |
|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.                      |                                        |