RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           17 February 2005
      DOCKET NUMBER:  AR20040001583


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Thomas D. Howard              |     |Chairperson          |
|     |Mr. John Infante                  |     |Member               |
|     |Ms. Maribeth Love                 |     |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 was unjustly court-martialed
after a racially motivated altercation with a white Soldier.  He claims the
lieutenant that interceded in the altercation would not listen to his side
of the story.  He claims there were several witnesses to the fight and he
provides names of three of these witnesses.  He claims his service was
commendable until this altercation that he had to participate in to defend
himself.  He states his record speaks for itself.  He is a Vietnam veteran
and completed two tours of duty in the Republic of Vietnam (RVN) and
received awards that included an Army Commendation Medal (ARCOM) and Combat
Infantryman Badge (CIB).  He also states that it took him some time to
adjust back into civilian life after his RVN experiences and he is now a
homeless veteran who is unable to keep a job.

3.  The applicant provides a self-authored statement and separation
document (DD Form 214) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 29 September 1970.  The application submitted in this case
is dated 4 May 2004.

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.  The applicant’s record shows that he was inducted into the Army and
entered active duty on 20 September 1968.  He was trained in, awarded and
served in military occupational specialty (MOS) 11C (Infantry Indirect Fire
Crewman).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows that
he was promoted to the rank of specialist four (SP4) on 6 September 1969
and this was the highest rank he attained while serving on active duty.  It
also shows that he served in the RVN from 11 February 1969 through 11
February 1970.  It further shows that during his active duty tenure, he
earned the following awards:  National Defense Service Medal, Vietnam
Service Medal with 1 bronze service star, Vietnam Campaign Medal with 60
Device, CIB, ARCOM and 2 Overseas Bars.

5.  On 15 July 1970, while assigned to Fort Benning, Georgia, a general
court-martial (GCM) convicted the applicant of violating Article 128 of the
Uniform Code of Military Justice (UCMJ) by unlawfully striking a private
first class (PFC).  He was also convicted of violating Article 89 of the
UCMJ by being disrespectful toward a captain, his superior commissioned
officer.  The resultant sentence included confinement at hard labor for
three months.

6.  On 26 September 1970, the applicant’s unit commander at the
correctional holding detachment, Fort Benning, advised the applicant that
he intended to recommend his separation from the Army for unfitness.  The
unit commander also advised the applicant of his rights.

7.  On 27 September 1970, the applicant consulted with legal counsel and
was advised of the basis for the contemplated separation action, its
effects and of the rights available to him.  Subsequent to this counseling,
the applicant waived his right to have his case considered by a board of
officers, waived his right to personal appearance before a board of
officers and elected not to submit a statement in his own behalf.

8.  On 27 September 1970, the applicant’s unit commander recommended the
applicant’s separation under the provisions of Army Regulation 635-212, by
reason of unfitness (frequent incidents of a discreditable nature with
military authorities).  In an accompanying request for waiver of
rehabilitation, the unit commander indicated the applicant had been the
subject of 14 disciplinary reports during his period of confinement.  The
unit commander also indicated the applicant took a very active part in a
riot inside the stockade from 24 through
25 September 1970.  The unit commander also stated the applicant had been
counseled on numerous occasions by the correctional officer, assistant
correctional officer, his assigned counselor and other members of the
correctional staff with no demonstrated change in attitude effectuated,
other than an increasingly stronger determination not to return to duty.

9.  On 29 September 1970, the separation authority approved the applicant’s
separation and the applicant was discharged the same date.

10.  The DD Form 214 issued to the applicant on the date of his discharge,
29 September 1970, confirms he was separated under the provisions of Army
Regulation 635-212, by reason of unfitness and that he received an UD.  The
separation document further shows that he completed a total of 1 year, 6
months and 17 days of creditable active military service and that he
accrued 175 days of time lost.  .

11.  There is no indication that the applicant applied to the Army
Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-
year statute of limitations.

12.  Army Regulation 635-212, in effect at the time, set forth the basic
authority, established the policy, and prescribed the procedures for
separating members for unfitness.  An undesirable discharge was normally
considered appropriate for members separating under these provisions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge was unjust because it was
the result of an altercation he was involved in only to defend himself.
However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms a GCM convicted the applicant of
unlawfully striking another Soldier and of being disrespectful to a senior
commissioned officer and sentenced him to confinement.  It further shows
that it was not this incident, but rather the applicant’s misconduct in
confinement that led to his separation processing and to his receiving an
UD.

3.  The record shows the applicant’s separation processing was accomplished
in accordance with the applicable regulation in effect at the time.  All
requirements of law and regulation were met, the rights of the applicant
were fully protected throughout the separation process and the applicant’s
discharge accurately reflects his overall record of 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.
5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 29 September 1970.  Therefore, the
time for him to file a request for correction of any error or injustice
expired on
28 September 1973.  However, he failed to 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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MBL_  ___TDH__  ___JI___  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  __
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040001583                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/02/17                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1970/09/29                              |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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