RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          16 August 2005
      DOCKET NUMBER:  AR20040006647


      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. Rosa M. Chandler              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. James B. Gunlicks             |     |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 undesirable discharge (UD)
be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he was medically evacuated from
Vietnam and treated at a hospital in Philadelphia for post war syndrome.
He was separated under the provisions of Army Regulation 635-212 and led to
believe that the UD would be upgraded to a honorable discharged after some
specified number of years.  He also states that he desires to have his
discharge upgraded so that he may be eligible to obtain a medical rating
from the Veterans Administration (VA).

3.  The applicant provides no evidence in support of his request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel was provided an opportunity to respond and no reply was received.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 24 August 1970.  The application submitted in this case is
dated 23 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 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.  Prior to the period of service under review the applicant served
honorably in the Regular Army (RA) from 2 March 1966 to 21 June 1967 until
he was separated for immediate reenlistment.

4.  On 22 June 1967, while assigned to Germany, the applicant reenlisted in
the RA for a period of 6 years, his previous military occupational
specialty (MOS) 36C (Lineman) and in pay grade E-3.

5.  On 28 October 1967, nonjudicial punishment (NJP) under the provisions
of Article 15, Uniform Code of Military Justice (UCMJ), was imposed against
him for missing bed check and formation on 24 October 1967.  His punishment
included a forfeiture of $19.00 pay per month for 1 month and 14 days of
extra duty and restriction.

6.  On 4 January 1968, NJP under the provisions of Article 15, UCMJ, was
imposed against the applicant for missing bed check on 3 and 4 January
1968.  His punishment included reduction from pay grade E-2 to pay grade E-
1, a forfeiture of $23.00 pay for 1 month and 14 days extra duty and
restriction.
On 9 January 1968, NJP was imposed against him for breaking restriction on
8 January 1968.  His punishment included a forfeiture of $23.00 pay for 1
month and 14 days of extra duty and restriction, to run concurrently.

7.  On 1 March 1968, the applicant was assigned to Vietnam.

8.  On 19 March 1968, NJP under the provisions of Article 15, UCMJ, was
imposed against the applicant for failure to report to his appointed place
of duty at the time prescribed.  His punishment included 14 days of extra
duty and restriction.

9.  On 4 November 1968, after serving only 8 months in Vietnam, the
applicant left Vietnam and was assigned to Fort Belvior, Virginia with
duties in his MOS.

10.  On 15 April 1969, the applicant was assigned to the Overseas
Replacement Station, Fort Lewis, Washington, enroute to Vietnam.  On 3 June
1969, he left the Replacement Station in an absent without leave (AWOL) and
remained AWOL until he returned to military control at Fort George G.
Meade, Maryland on 12 July 1970.

11.  On 27 July 1970, court-martial charges were preferred against the
applicant. On 28 July 1970, he consulted with legal counsel and requested
discharge for the good of the service in lieu of trial by court-martial
under the provisions of chapter 10, Army Regulation 635-200.  He was
advised that he could receive a UD.  He acknowledged that he understood the
ramifications of receiving a UD.  He declined to submit a statement in his
own behalf.

12.  The applicant's record does not contain all of the facts and
circumstances surrounding the discharge process.  However, his record does
contain a properly constituted DD Form 214 that was prepared at the time of
his separation.  The DD Form 214 shows that, on 24 August 1970, he was
separated for the good of the service, under the provisions of chapter 10,
Army Regulation 635-200, in pay grade E1 with a UD.  He had completed 2
years and 27 days of active military service on the enlistment under review
and he had 414 days of lost time, due to being AWOL.  He had also completed
1 year, 3 months and 2 days of prior active military service.

13.  Item 16c (Date of Entry) of the applicant's DD Form 214, dated 24
August 1970, erroneously shows that he reenlisted on 2 June 1967.

14.  On an unknown date, the applicant petitioned the Army Discharge Review
Board (ADRB) seeking a discharge upgrade.  The ADRB notified the applicant
that his application was not filed within that board's 15-year statute of
limitations and would not be considered.

15.  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.
At the time of the applicant's separation, a UD was appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was not separated under the provisions of Army Regulation
635-212, for unfitness.

2.  The available records show the applicant was discharged under the
provisions of chapter 10, Army Regulation 635-200.  Although some of the
facts and circumstances surrounding the discharge process are missing, he
was charged with the commission of an offense(s) punishable under the UCMJ
with a punitive discharge.  He consulted with defense counsel and
voluntarily requested a discharge to avoid trial by court-martial.  He
signed a statement indicating that he understood he could receive a UD and
the ramifications of receiving such a discharge.  In doing so, he would
have admitted guilt to the stipulated offense(s) under the UCMJ.  The Board
presumes administrative regularity and the applicant has provided no
information that would indicate the contrary.

3.   The available evidence does not indicate the applicant was medically
evacuated from Vietnam, or that he was suffering from any medically
unfitting disability which required physical disability processing.

4.  Eligibility for VA benefits, to include VA medical benefits, does not
fall within the purview of this Board.  Further, the lack of VA benefits
does not establish a basis for relief.
5.  The US Army does not have, nor has it ever had, a policy to
automatically upgrade discharges or to accept requests for upgrade after a
certain amount of time.  Each case is decided on its own merits when an
applicant submits a DD Form 149 (Application for Correction of Military
Record) requesting a change in discharge.  Changes may be warranted if the
Board determines that the characterization of service or the reason(s) for
discharge, or both, were improper or inequitable.  The applicant has failed
to convince the Board of either.

6.  The applicant may request that the Board correct his DD Form 214 issued
on 24 August 1970 to show his correct date of enlistment is 22 June 1967.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 24 August 1970; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
23 August 1973.  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

__mhm___  __jtm___  __jbg___  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.



                                  Melvin H. Meyer
            ______________________
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040006647                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050816                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19700824                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 10                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.7000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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