RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           29 JULY 2004
      DOCKET NUMBER:  AR2004099901


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Richard Dunbar                |     |Member               |
|     |Mr. Thomas O'Shaughnessy          |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 records be corrected by upgrading his
discharge, and by awarding him several months of back pay in the grade of E-
3.

2.  The applicant states, in effect, that he was reduced from E-3 to E-2
while in Vietnam, but received his E-3 rank back in February 1968.
However, when he returned to Fort Campbell, Kentucky, he was informed that
there were no orders in his records promoting him to E-3.  He was not
allowed to wear the rank, and was paid as an E-2 for several months, which
caused him to go AWOL (absent without leave).  He has had a bad feeling
about his military service which has caused him stress and hardship.

3.  The applicant provides a copy of his 1970 DD Form 214 (Armed Forces of
the United States Report of Transfer or Discharge) and his DA Form 20
(Enlisted Qualification Record) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
1 July 1970.  The application submitted in this case is dated 14 October
2003.

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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (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
Army Board for Correction of Military Records (ABCMR) should commence on
the date of final action by the ADRB.  In complying with this decision, the
ABCMR 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.

3.  The applicant enlisted in the Regular Army on 9 September 1966 for a
period of 6 years.  He was promoted to the pay grades of E-2 and E-3, on 9
December 1966, and 7 March 1967, respectively.




4.  On 19 August 1967, he accepted nonjudicial punishment (NJP) under the
provisions of Article 15, Uniform Code of Military Justice (UCMJ) for
disobeying a lawful order by failing to have his ID card and by leaving
post without a pass.  His punishment was restriction, extra duty, and a
forfeiture of pay.

5.  On 21 October 1967, he accepted NJP under the provisions of Article 15,
UCMJ for being AWOL from 20 October to 21 October 1967.  His punishments
were restriction, extra duty, and reduction to pay grade E-2.

6.  On 26 January 1968, he accepted NJP under the provisions of Article 15,
UCMJ for being absent from his place of duty, and for entering an off
limits area during curfew.  His punishments were extra duty and a
forfeiture of pay.

7.  The applicant’s records contain a Special Order Number 45, dated
        20 February 1968, promoting him to pay grade E-3.  He was stationed
in Vietnam at the time.

8.  On 16 December 1968, he was convicted by a special court-martial of
being AWOL from 16 September 1968 to 4 December 1968.  He was sentenced to
confinement at hard labor for 6 months (suspended), a forfeiture of pay,
and reduction to E-1.

9.  On 13 August 1969, he was convicted by a special court-martial of being
AWOL from 9 May 1969 to 9 June 1969, and from 11 June 1969 to 10 July 1969.
He was sentenced to confinement at hard labor for 2 months, and a
forfeiture of pay.

10.  The applicant’s DA Form 20 indicates he was promoted to pay grade E-2
on 23 October 1969.

11.  On 7 May 1970, he was convicted by a special court-martial of being
AWOL from 12 November 1969 to 7 February 1970, and from 11 February 1970 to

5 April 1970.  He was sentenced to confinement at hard labor for 6 months,
a forfeiture of pay, and reduction to pay grade E-1.

12.  On 9 June 1970, a mental evaluation determined that the applicant had
no psychiatric illness.

13.  On 15 June 1970, the applicant was informed by his commander that he
was initiating action to separate him from the service under the provisions
of Army Regulation 635-212, for unfitness.  He was also informed of his
rights and waiver privileges
14.  On 15 June 1970, a medical examination cleared the applicant for
separation.

15.  On 17 June 1970, after consulting with legal counsel, the applicant
waived consideration of his case by a board of officers, waived legal
representation, and declined to submit a statement in his own behalf.  He
acknowledged that he understood that if he was issued an under conditions
other than honorable discharge he may encounter substantial prejudice in
civilian life, and would be ineligible for many or all benefits as a
veteran under both Federal and state laws.

16.  On 26 June 1970, the appropriate separation authority approved the
applicant’s discharge and directed the issuance of an undesirable
discharge.

17.  On 1 July 1970, the applicant was discharge under the provisions of
Army Regulation 635-212, with a characterization of service as under other
than honorable conditions discharge.  His DD Form 214 indicates he had 2
years,       6 months, and 17 days of creditable service, and over 300 days
of lost time.

18. Army Regulation 635-212, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  Paragraph 6a(1) of the
regulation provided, in pertinent part, that members involved in frequent
incidents of a discreditable nature with civil or military authorities were
subject to separation for unfitness.  An undesirable discharge was normally
considered appropriate.

19.  On 2 December 1985, the Army Discharge Review Board (ADRB) denied the
applicant’s request to upgrade his discharge.

DISCUSSION AND CONCLUSIONS:

1.  The discharge proceedings were conducted in accordance with law and
regulations applicable at the time. The character of the discharge is
commensurate with the applicant's overall record of military service, and
there is  no justification for upgrading his discharge.

2.  Evidence shows the applicant was promoted to the pay grade of E-3 on
20 February 1968, however there is no evidence in the available records nor
did the applicant provide documentation to substantiate his claim that
there were several months that he was not paid at that grade.

3.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.
4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 2 December 1985; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on      1 December 1988.  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 RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JS___  ___RD __  ___TO __  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.




            _____  John Slone_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004099901                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040729                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |128.00                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]