RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 March 2005
      DOCKET NUMBER:  AR20040004409


      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. Michael J. Fowler             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Allen L. Raub                 |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Mr. Robert Rogers                 |     |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 be upgraded.

2.  The applicant states, in effect, that under the Carter and Reagan
administrations Vietnam veterans warranted upgrades to their discharges.

3.  The applicant provides no documentation in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 27 March 1968.  The application submitted in this case is dated
14 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 was inducted into the Army on 10 July 1963 for a two-year
period.  He successfully completed basic training and advanced individual
training.  He was awarded military occupational specialty 051.10 (Radio
Operator).  On 29 June 1965, the applicant was honorably separated from the
active Army and transferred to the U.S. Army Reserve.  He reenlisted in the
active Army on 9 March 1966 for a three-year term.

4.  A DA Form 20 (Enlisted Qualification Record) shows that the applicant
served in the Republic of Vietnam from 5 June 1966 through 28 March 1968.

5.  On 27 September 1966, the applicant accepted nonjudicial punishment
(NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for
breaking curfew.

6.  On 23 November 1966, the applicant was convicted by a special court-
martial of being absent without leave (AWOL) for the periods from 1 p.m. 7
November 1966 through 11 p.m. 8 November 1966, 9:30 p.m. 8 November 1966
through
9 a.m. 10 November 1966, and 11 p.m. 10 November 1966 through
9 p.m. 11 November 1966.  He was sentenced to be reduced to private/pay
grade E-1, to perform hard labor for three months, and to forfeit of $86.00
per month for three months.

7.  On 5 April 1967, the applicant was convicted by a special court-martial
of being AWOL for the periods from 6 a.m. 15 March 1967 through 10 a.m.
22 March 1967 and 5 p.m. 23 March 1967 through 7 p.m. 29 March 1967.  He
was sentenced to be reduced to private/pay grade E-1, to perform hard labor
for six months, and to forfeit of $86.00 per month for six months.

8.  The commander's notification of separation to the applicant is not
available.

9.  On 26 November 1967, the applicant consulted with the defense counsel
and was advised of his rights and the effect of a waiver of these rights.
The applicant was advised of the basis for his separation under the
provisions of Army Regulation 635-212.  He indicated that he was counseled
by appropriate counsel, that he waived consideration of his case by a board
of officers, that he waived the right to provide statements on his own
behalf and that he waived representation by military counsel.

10.  The applicant also indicated that he was aware that as a result of the
issuance of an undesirable discharge that he may be ineligible for any or
all benefits as a veteran under both Federal and state laws, and that he
may expect to encounter substantial prejudice in civilian life based on
this undesirable discharge.

11.  On 28 November 1967, the applicant was convicted by a special court-
martial of being AWOL for the periods from 18 September 1967 through
10 October 1967 and 27 October 1967 through 2 November 1967.  He was
sentenced to perform hard labor for three months and to forfeit $91.00 per
month for three months.

12.  On 16 December 1967, the applicant’s commander signed an elimination
packet for separation under the provisions of Army Regulation 635-212
(Discharge-Unfitness and Unsuitability) for unfitness.  The reasons cited
by the commander were frequent incidents of a discreditable nature with
civil or military authorities and an established pattern of shirking.

13.  On 19 March 1968, the appropriate authority approved the separation
and directed the applicant receive an undesirable discharge under the
provisions of Army Regulation 635-200 for unfitness.  On 27 March 1967, the
applicant separated from the service after completing 3 years, 11 months,
and 8 days of creditable active service and had 344 days of lost time due
to AWOL and confinement.

14.  On 5 July 1977, the applicant was notified by the Office of the
Adjutant General and the Adjutant General Center, Washington, D.C. that his
application for upgrade of his discharge under the Department of Defense,
Special Discharge Review Program (DOD-SDRP) was considered by the Army
Discharge Review Board (ADRB) and was approved on 1 June 1977.

15.  On 30 September 1978, the applicant was notified by the Office of the
Adjutant General and the Adjutant General Center that the previous
upgrading of his discharge had been re-reviewed by the ADRB as required by
Public Law
95-126.  As a result of the review, the ADRB determined that he did not
qualify for upgrading under the new uniform standards for discharge review.
 His upgraded discharge under the SDRP was not affirmed.

16.  Army Regulation 635-212, in effect at the time, set forth the basic
authority for the elimination of enlisted personnel.  Paragraph 6 of the
regulation provided, in pertinent part, that an individual was subject to
separation for unfitness because of frequent incidents of a discreditable
nature with civil or military authorities; sexual perversion including but
not limited to lewd and lascivious acts, indecent exposure, indecent acts
with or assault on a child; drug addiction or the unauthorized use or
possession of habit-forming drugs or marijuana; an established pattern of
shirking; and an established pattern of dishonorable failure to pay just
debts or to contribute adequate support to dependents (including failure to
comply with orders, decrees or judgments).  When separation for unfitness
was warranted an undesirable discharge was normally considered appropriate.

17.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

18.  The SDRP was based on a memorandum from Secretary of Defense Brown and
is often referred to as the “Carter Program.”  It mandated the upgrade of
individual cases in which the applicant met one of several specified
criteria and when the separation was not based on a specified compelling
reason to the contrary.  The ADRB had no discretion in such cases other
than to decide whether recharacterization to fully honorable as opposed to
a general discharge was warranted in a particular case.

19.  Public Law 95-126 provided in pertinent part for a “Relook Program.”
All cases upgraded from under other than honorable conditions under the
SDRP had to be relooked and affirmed or not affirmed under uniform
standards.  One of the principal features of Public Law 95-126 was
prospective disqualification for receipt of VA benefits for those
originally qualifying as a result of upgrade by the SDRP, unless an
eligibility determination is made under the published uniform standards and
procedures.

20.  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 (AR 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.  Evidence shows that the applicant was properly and equitably discharged
in accordance with the regulations in effect at the time and that the ADRB
later upgraded the applicant's discharge from Undesirable to General Under
Honorable Conditions (although the upgrade was not later affirmed under
Public Law 95-126).

2.  In the absence of evidence to the contrary, it is determined that all
requirements of law and regulations were met and the rights of the
applicant were fully protected throughout the separation process.

3.  The applicant's records show that he was convicted by three special
courts-martial, received one Article 15, and had five instances of AWOL
while in a combat zone.  The applicant had completed 1 year, 1 month and 4
days of his 3-year enlistment with a total of 344 lost days due to AWOL and
confinement.  Based on these facts, the applicant’s service clearly did not
meet the standards of acceptable conduct and performance of duty for Army
personnel which are required for issuance of an honorable discharge or
affirming the general discharge.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 September 1978, the date of the
last ADRB action; therefore, the time for the applicant to file a request
for correction of any error or injustice expired on 29 September 1981.
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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__ALR_ _  ___REB _  __RR____  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.




                                  ____ Mr. Allen L. Raub___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040004409                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |31 March 2005                           |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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