RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 August 2005
      DOCKET NUMBER:  AR20040011735


      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. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Mr. Ronald J. Weaver              |     |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 discharge under honorable
conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he was treated unjustly by his
unit superior’s after refusing to become a “Yellow Dog”.

3.  The applicant provides a self authored letter in support of his
application.  Which states, in effect, that in late December 1972, while
assigned to a unit in Vietnam, he was approached to join a brotherhood
organization called the “Yellow Dog”.  This brotherhood consisted of white
males from southern states that hung out together and also worked together.
 He states, that he was invited to join the group, he refused to join the
group and because of his refusal he was treated poorly.  He was transferred
from the motor pool to the arms room and then transferred to the other side
of the base.  In January, he thought that he was signing an Article 15,
however, he was signing a discharge.  He further states, in effect, that he
served honorably for over a year in Germany, rising through the ranks and
did well in all his training.  He was hospitalized for URI, which was so
severe that he was placed in a tub of ice to lower his temperature, after
10 days in the hospital he was barely able to talk.  He believes that he
served well and never once made demands or filed complaints against anyone
for the way he was treated.  During that time period, two captains were
gassed while sleeping, there was an explosion near the arms room, there was
a person who lost two fingers which was unexplained, several racial fights
and several blanket parties during 1971 and 1972.  The applicant provides
no additional documents in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 27 February 1972.  The application submitted in this case
is dated 15 December 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 on
22 December 1969.  On 25 February 1970, while in basic combat training, the
applicant was convicted by a Summary Court-Martial for failure to repair,
for malingering and for disobeying a lawful order from a superior
commissioned officer.  He was sentenced to confinement at Hard Labor for 1
month and a forfeiture of $76.00 pay.  The applicant completed his training
and was awarded military occupational specialty 63C10 (Track Vehicle
Mechanic).

4.  On 27 July 1970, the applicant accepted nonjudicial punishment (NJP)
for being absent without leave (AWOL) from 5 to 24 July 1970.  His imposed
punishment was a forfeiture of $60.00 pay.

5.  On 4 October 1971, the applicant accepted NJP for being AWOL from 8 to
21 September 1971.  His imposed punishment was an oral reprimand.

6.  On 8 December 1971, the applicant accepted NJP, for failure to repair
and for disobeying a lawful order.  His imposed punishment was a forfeiture
of $40.00 pay and a reduction to pay grade E-3 (suspended for 60 days).

7.  On 29 January 1972, while assigned to a unit in Vietnam, court-martial
charges were preferred against the applicant for being disrespectful toward
a commissioned officer and for disobeying a lawful order.

8.  On 6 February 1972, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation action, the effects of
an undesirable discharge and of the rights available to him.  The applicant
voluntarily requested discharge for the good of the service, in lieu of
trial by court-martial.  He also stated his understanding 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 undesirable discharge.

9.  On 18 February 1972, the separation authority approved the applicant’s
request for discharge and directed that he receive an Undesirable Discharge
Certificate.  On 27 February 1972, the applicant was discharged
accordingly.
The separation document (DD Form 214) he was issued confirms he completed
2 years and 26 days of creditable active military service and accrued 40
days of time lost due to AWOL.

10.  On 25 April 1973, the Army Discharge Review Board (ADRB) determined
that the applicant’s discharge was proper and equitable and voted to deny
the applicant’s request for an upgrade of his discharge.

11.  On 9 August 1977, the ADRB under the DOD Discharge Review Program
(Special) upgraded his discharge to Under Honorable Conditions (General),
effective 12 July 1977.

12.  On 26 July 1978, the ADRB re-reviewed the applicant’s discharge and
affirmed the applicant’s discharge under Uniform Standards.

13.  On 4 April 1977, the DOD directed the Services to review all less than
fully honorable administrative discharges issued between 4 August 1964 and
28 March 1973.  This program, known as the DOD Discharge Review Program
(Special) (SDRP), required, in the absence of compelling reasons to the
contrary, that a discharge upgrade to either honorable or general be issued
in the case of any individual who had either completed a normal tour of
duty in Southeast Asia, been wounded in action, been awarded a military
decoration other than a service medal, had received an honorable discharge
from a previous period of service, or had a record of satisfactory military
service of 24 months prior to discharge.  Consideration of other factors,
including possible personal problems which may have contributed to the acts
which led to the discharge and a record of good citizenship since the time
of discharge, would also be considered upon application by the individual.

14.  In October 1978, Public Law 95-126 was enacted.  This legislation
denied Veterans Administration (VA) benefits to any former service member
who had been AWOL for more than 180 consecutive days, or who had been
classified as a deserter or a conscientious objector.  The DOD was required
to establish historically consistent, uniform standards for discharge
reviews.  Reconsideration using these uniform standards was required for
all discharges previously upgraded under the SDRP and certain other
programs were required.  Individuals whose SDRP upgrades were not affirmed
upon review under these historically consistent uniform standards were not
entitled to VA benefits, unless they had been entitled to such benefits
before their SDRP review.

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.  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 Undesirable Discharge
Certificate.

16.  The applicant provides a self authored letter dated 15 December 2004,
which outlines his problems in the military.

17.  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 3. 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 contentions that he was treated unjustly by his unit
superiors after refusing to become a “Yellow Dog” was carefully considered
and found to be insufficient evidence to support granting the relief
requested in this case.  The self authored letter provided by the applicant
does not provide enough evidentiary basis to support granting relief.
Therefore, given the circumstances in this case and his overall
undistinguished record of service, there is insufficient evidence to
support his request at this time.

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, the rights of the applicant
were fully protected throughout the separation process and his discharge
accurately reflects his overall record of short and undistinguished
service.

3.  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.

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 26 July 1978.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 25 July 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

__JEV __  __RJW __  ___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.




                                   _____James E. Vick     ___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011735                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005/08/11                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1972/02/27                              |
|DISCHARGE AUTHORITY     |AR635-200-chp10 . . . . .               |
|DISCHARGE REASON        |In lieu of trial by court-martial       |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.110.00 |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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