RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           14 April 2005
      DOCKET NUMBER:  AR20040004124


      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. James E. Vick                 |     |Chairperson          |
|     |Ms. Ann M. Campbell               |     |Member               |
|     |Ms. Margaret V. Thompson          |     |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, that his general, under honorable
conditions discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that his undesirable discharge (UD)
was upgraded to a GD by the Army Discharge Review Board (ADRB).  He further
states that when he was overseas, he did not get paid.  He further states
that he might have Agent Orange and he suffered an eye injury while
cleaning his weapon during his service, but he is unable to get help with
these problems.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 15 January 1972.  The application submitted in this case
was received on 13 July 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 limitations 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 enlisted in the Regular Army and
entered active duty on 31 March 1971.  He was trained in, awarded and
served in military occupational specialty (MOS) 11B (Infantryman).  The
record shows the highest rank he attained while serving on active duty was
private/E-2 (PV2) and that he served in the Republic of Vietnam (RVN) from
25 October 1971 through 14 January 1972.
4.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.  The record does
reveal a disciplinary history that includes his acceptance of nonjudicial
punishment (NJP) under the provisions of Article 15 of the Uniform Code of
Military Justice (UCMJ) on two separation occasions.

5.  On 17 June 1971, the applicant accepted NJP for stealing a watch of
another Soldier.  His punishment for this offense included a forfeiture of
$31.00, 9 hours of restriction and 2 hours of extra duty.

6.  On 22 October 1971, the applicant accepted NJP for absenting himself
from his unit and missing his flight for movement to the RVN.  The
resultant punishment for these offenses was reduction to private/E-1 (PV1)
and forfeiture of $35.00.

7.  On 18 December 1971, while the applicant was serving in the RVN, a
Charge Sheet (DD Form 458) was prepared preferring three court-martial
charges against him for violating Article 86, Article 87 and Article 92 of
the UCMJ.  Charge I was for his violating Article 86 by failing to go to
his appointed place of duty at the prescribed time.  Charge II was for two
specifications of his violating Article 87 by missing movement with his
unit on two separate occasions.  Charge III was for his violating Article
92 by disobeying a lawful order from his first sergeant.

8.  On 7 January 1972, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
effects of an UD and of the rights available to him.  Subsequent to
receiving this legal counsel, the applicant voluntarily requested discharge
for the good of the service, in lieu of trial by court-martial.

9.  In his request for discharge, the applicant acknowledged he understood
that if his discharge request was approved, he could be deprived of many or
all Army benefits, that he could be ineligible for many or all benefits
administered by the Department of Veterans Affairs (VA), and that he could
be deprived of his rights and benefits as a veteran under both Federal and
State law.  He further indicated that he understood that he could encounter
substantial prejudice in civilian life by reason of an UD.
10.  The separation authority approved the applicant’s request for
discharge and directed that he receive an UD and be reduced to the lowest
enlisted grade.  On 15 January 1972, the applicant was discharged
accordingly.  The separation document (DD Form 214) he was issued confirms
he completed a total of
9 months and 15 days of creditable active military service and that he
earned the National Defense Service Medal and Marksman Qualification Badge
with Rifle Bar during his active duty tenure.

11.  On 25 June 1974, the Army Discharge Review Board (ADRB) voted to
upgrade the applicant’s discharge from an UD to a GD.

12.  On 7 February 1978, the ADRB voted to deny the applicant’s request to
upgrade his GD to an HD.  The ADRB commented that there were no
improprieties in the applicant’s discharge processing and he was properly
separated.  It further noted that the ADRB had upgraded the applicant’s
discharge to a GD under current standards in 1974, but no new factors were
presented that would further mitigate his acts of indiscipline.

13.  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 UD.

14.  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 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 ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the Board 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.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he is in need of help due to service
connected medical issues was carefully considered.  However, this factor is
not sufficiently mitigating to warrant the requested relief.

2.  The evidence of record confirms that the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, the applicant voluntarily
requested discharge from the Army in lieu of trial by court-martial.  All
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout the separation process.

3.  The record further shows that in 1974, the ADRB upgraded the
applicant’s discharge to a GD for equity reasons.  However, the ADRB found
no factors supporting a further upgrade of his discharge during a 1978
review of his case.

4.  The facts in this case do not support a further upgrade of the
applicant’s discharge.  The GD granted by the ADRB accurately reflects the
applicant’s overall record of undistinguished service, and his misconduct
clearly diminished the quality of his service below that warranting a fully
honorable discharge.  As a result, relief beyond that already granted by
the ADRB is not warranted in this case.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 7 February 1978.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 6 February 1981.  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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___AMC_  ___MVT_  ___JEV__  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 E. Vick_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040004124                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/04/14                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1972/01/15                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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