RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        31 March 2005
      DOCKET NUMBER:  AR20040005552


      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. William D. Powers             |     |Chairperson          |
|     |Mr. Ronald J. Weaver              |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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 that his discharge be changed to a medical
discharge.

2.  The applicant states, in effect, that he was involved in a hunting
accident while on leave that caused him to lose two toes and a portion of
his left foot.  He states that the medical option was never offered to him
and feels that he should have been medically discharged.

3.  The applicant states that his military records were pretty good until
he was injured.  He continues that because of his injury he was not able to
perform his duties as an aircraft maintenance crewman and made him lose
hope.  He admits that he made a mistake by going absent without leave
(AWOL) and has been punished for the last 35 years for it.  He further
states that the bad conduct discharge he received was far too severe a
punishment for the AWOL offense.

4.  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 11 November 1971.  The application submitted in this case is
dated 5 August 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 enlisted in the Regular Army on 29 December 1967 and
successfully completed basic training and advanced individual training.  He
was awarded military occupational specialty 67A (Aircraft Maintenance
Crewman).

4.  On 10 April 1968, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for attempting
wrongful appropriation of an automobile.

5.  The applicant arrived in Vietnam on 9 June 1968.

6.  On 8 October 1968, the applicant accepted NJP under Article 15, UCMJ
for disobeying and disrespecting a senior noncommissioned officer (NCO).

7.  The applicant departed Vietnam on 5 June 1969.

8.  Records show that the applicant was absent without leave (AWOL) on 29
July 1969.

9.  On 3 September 1969, the applicant accepted NJP under Article 15, UCMJ
for failing to obey a general regulation.

10.  On 29 September 1969, the applicant accepted NJP under Article 15,
UCMJ for failing to obey a general regulation.

11.  On 3 October 1969, the applicant accepted NJP under Article 15, UCMJ
for failing to obey a general regulation and for failing to be at his
appointed place of duty.

12.  Records show that the applicant was AWOL for the period 20 July 1970
thorough 15 September 1970.

13.  On 25 November 1970, the applicant was convicted pursuant to his pleas
by a special court-martial of AWOL for the periods 18 October 1969 through
20 April 1970 and 12 May 1970 through 27 May 1970.  His sentence consisted
of a forfeiture of $62.00 for a period of five months, confinement at hard
labor for five months, and a bad conduct discharge.

14.  On 22 June 1971, the U.S. Army Court of Military Review (USACMR)
considered the applicant's appeal and determined that there was no merit or
basis to set aside the findings and sentence.  The USACMR affirmed the
finding of guilty and the sentence.

15.  The applicant's medical records are not available.

16.  On 11 November 1971, the applicant was discharged with a bad conduct
discharge pursuant to his court-martial sentence.  He had completed 2
years, 7 months, and 24 days of creditable active military service with 445
days of lost time due to AWOL and confinement.

17.  On 24 September 1976, the applicant was notified that he was awarded a
clemency discharge, pursuant to Presidential Proclamation 4313 of
16 September 1974.

18.  Records show that, on 23 April 1979 the Army Discharge Review Board
(ADRB) unanimously denied the applicant's request for an upgraded
discharge.  He failed to mention in the request that he was hurt in a
hunting accident while on active duty.

19.  On 19 August 1981, the ABCMR considered the applicant’s request to
upgrade his discharge.  The ABCMR unanimously determined that the discharge
was proper and equitable and that his discharge was proper as under other
than honorable conditions.  There is no mention in the request that he was
given medical treatment for a hunting accident.

20.  Army Regulation 635-40 governs the evaluation of physical fitness of
soldiers who may be unfit to perform their military duties because of
physical disability.  The unfitness is of such a degree that a Soldier is
unable to perform the duties of his office, grade, rank or rating in such a
way as to reasonably fulfill the purposes of his employment on active duty.
 Paragraph 3-1 states that the mere presence of an impairment does not, of
itself, justify a finding of unfitness because of physical disability.  In
each case, it is necessary to compare the nature and degree of physical
disability present with the requirements of the duties the Soldier
reasonably may be expected to perform because of his or her office, grade,
rank, or rating.  Paragraph 4-3 states that an enlisted Soldier may not be
referred for, or continue, physical disability processing when action has
been started under any regulatory provision which authorizes a
characterization of service of under other than honorable conditions. An
exception may be made by the general court-martial convening authority if
the disability is the cause, or a substantial contributing cause, of the
misconduct that might result in a discharge under other than honorable
conditions or other circumstances warrant disability processing instead of
alternate administrative separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's medical records are not available and he has not
provided evidence that shows he lost two toes and a portion of his left
foot on a hunting accident while serving on active duty.

2.  In his statement the applicant implies the accident occurred after his
return from Vietnam.  It is noted his record of misconduct began before he
left Vietnam. There is insufficient evidence to show whether his record of
AWOL after returning from Vietnam was the result of frustration caused by
his accident or merely a further manifestation of his earlier tendency
towards misconduct.

3.  There is insufficient evidence to show the applicant met the
eligibility criteria for referral to the physical disability system.
4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 11 November 1971; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 10 November 1974.  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

__ WDP _  _RJW___  __ LGH  _  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. William D. Powers _
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040005552                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |31 March 2005                           |
|TYPE OF DISCHARGE       |BCD                                     |
|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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