RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        JANUARY 6, 2005
      DOCKET NUMBER:  AR2004103549


      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. Luis Almodova                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms. Yolanda Maldonado             |     |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 be upgraded to
honorable.

2.  The applicant states, in effect, that his current discharge is unjust.
The applicant states that he was coerced into making a statement on 24
September 1970 that says he was incapable of adjusting to the ways and life
of the Army and that he barely made it through basic and advanced
individual training and that he had received oral reprimands during that
time.  These statements are false based on documents that will show that
during basic combat training, he was appointed a squad leader and received
a promotion to Private, E-2, out of basic.  After advanced individual
training, he received a promotion to the rank of Private First Class.
During this time, he never received any oral reprimands.  He was told to
make this statement by his defense counsel.  When he arrived in Vietnam, he
was promoted to Specialist Four, E-4 and was put into the position of tank
commander.

3.  The applicant provides those documents that are shown on the letter of
transmittal prepared by counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests consideration of the applicant's request for an
upgrade of his discharge.

2.  Counsel has added nothing to arguments/contentions already submitted by
the applicant.

3.  Counsel provides those documents that are specifically identified in
his letter of transmittal of the applicant's application to the Board for
consideration.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice, which
occurred on 4 November 1970.  The application submitted in this case is
dated 23 January 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.  The applicant was inducted in the Army of the United States on 20 March
1969.  Following completion of basic combat training at Fort Lewis,
Washington, he completed advanced individual training at Fort Leonard Wood,
Missouri, and was awarded the primary military occupational specialty (MOS)
12A, Pioneer.

4.  Item 33 (Appointments and Reductions), of the applicant's DA Form 20,
Enlisted Qualification Record, shows that he was advanced to the rank and
pay grade of Private, E-2, on 20 July 1969; and to the rank and pay grade
of Private First Class, E-3, on 25 July 1969.

5.  Item 38 (Records of Assignments), of the applicant's DA Form 20, shows
that he completed basic combat training on 22 May 1969 and he completed his
advanced individual training on 29 July 1969.

6.  The applicant was assigned to Headquarters and Headquarters Troop, 2nd
Squadron, 11th Armored Cavalry Regiment, in Vietnam, on 29 August 1969.

7.  Item 33, of the applicant's DA Form 20, shows he was promoted to the
rank and pay grade, Specialist Four, E-4 on 14 November 1969, nearly 3
months after he arrived in Vietnam.

8.  Item 38, of the applicant's DA Form 20, shows that he was an armored
vehicle driver while he served in Vietnam from 29 August 1969 through 9
March 1970.

9.  On 4 February 1970, the applicant was given a 14-day emergency leave.
On 25 March 1970, the applicant's unit reported him absent without leave
(AWOL), effective 10 March 1970, because he failed to return from emergency
leave.  On 29 March 1970, the Benicia Police Department apprehended the
applicant.  He was turned over to the control of the Vallejo Shore Patrol,
Vallejo, California, and was later transported to the Provost Marshal's
Office, Presidio of San Francisco, on the same date.  On 30 March 1970, he
was released and was ordered to return to his unit in Vietnam.  The
applicant failed to return to his unit and was dropped from the rolls of
the organization on 14 April 1970.
10.  On 30 May 1970, the applicant returned to military control and was
assigned to the Special Processing Detachment, Fort Ord, California.

11.  On 10 June 1970, the applicant received a summary court-martial.  He
was found guilty of absenting himself, without authority, from his unit in
Vietnam from on or about 10 March 1970 until on or about 30 May 1970.  The
applicant was sentenced to reduction to Private First Class and a
forfeiture of $80.00 for one month.  The sentence was approved and ordered
executed on 15 June 1970.

12.  On 7 August 1970, at approximately 0435 hours, the applicant was
detained by military police at Fort Ord.  He was found to have two tires
with rims in his possession.  Upon investigation, the tires and rims were
found to have been taken from another Soldier's privately owned vehicle.

13.  On 11 August 1970, the applicant was notified that special court-
martial charges were being imposed on him for stealing two tires, two mag
[magnesium] wheels, and ten lug nuts, the property of another Soldier.

14.  Before submitting his request for discharge, in lieu of trial by court-
martial, the applicant was afforded the opportunity to consult with legal
counsel.  The applicant consulted with counsel, a member of the Judge
Advocate General's Corps, on 24 September 1970.

15.  On 24 September 1970, the applicant requested that he be discharged
for the good of the service, under the provision of Army Regulation (AR)
635-200, Chapter 10, in lieu of trial by court-martial, under circumstances
which could lead to a bad conduct or dishonorable discharge.

16.  In his request for discharge, the applicant stated that he had not
been subjected to coercion with respect to his request for discharge and
that he had been advised of the implications that were attached to his
discharge.

17.  In his request for discharge, the applicant stated that he understood
that if his discharge was accepted, he could be discharged under other than
honorable conditions and furnished an undesirable discharge certificate,
and as a result of issuance of such a discharge, he could be deprived of
many or all Army benefits, and that he may be ineligible for many or all
benefits administered by the Veterans' Administration [now the Department
of Veterans' Affairs], and that he might be deprived of his rights and
benefits as a veteran under both Federal
and State law.  He also understood that he could expect to encounter
substantial prejudice in civilian life by reason of an undesirable
discharge.

18.  The applicant submitted a sworn statement in his behalf in connection
with his request for discharge.  In this statement, dated 24 September
1970, the applicant stated that he could not adjust to the ways and life in
the Army, that he barely made it through basic and advanced individual
training with just oral reprimands, which really did no good.  He described
having been assigned to Vietnam, having left there on emergency leave, and
knowing that he would not return to military duty when he got home.  He
added that when he was assigned to the Special Processing Detachment at
Fort Ord, that he only stayed because he had applied for a hardship
discharge.  He added that he was in the stockade awaiting a special court-
martial for larceny and that he could not make it through the military.
His view of the Army completely changed since he was in Vietnam and he
couldn't stand to be in the Army any more.

19.  The applicant's chain of command unanimously recommended approval of
his request and recommended that he be given an undesirable discharge.

20.  The approving authority, a major general, approved the applicant's
request for discharge on 29 October 1970.

21.  The applicant was separated with an undesirable discharge in the rank
and pay grade of Private, E-1, on 4 November 1970, under the provisions of
AR 635-200, Chapter 10.  The separation program number that was applied
to his DD Form 214, Armed Forces of the United States Report of Transfer or
Discharge, is, "246" (Discharge for the Good of the Service).  The
applicant's character of service was characterized as, "Under Other than
Honorable Conditions."

22.  On the date of his discharge, the applicant had completed 1 year, 4
months, and 3 days active military service with 80 days lost time.

23.  Item 24 (Decorations, Medals, Badges, Citations, and Campaign Ribbons
Awarded or Authorized), of the applicant's DD Form 214, shows that he was
awarded the National Defense Service Medal, the Vietnam Service Medal, the
Vietnam Campaign Medal, and the Sharpshooter Marksmanship Qualification
Badge, with Rifle Bar.  The record contains no documentary evidence of acts
of valor, achievement, or service warranting special recognition.
24.  The applicant's request for administrative discharge from the Army, in
lieu of court martial, is on file in the applicant's service personnel
records for review.

25.  The applicant applied to the Army Discharge Review Board for an
upgrade of his discharge on 6 May 1985.  On 4 April 1986, the ADRB denied
the applicant's request for an upgrade of his discharge and he was so
notified of the denial on 7 May 1986.

26.  AR 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 submit, at any time
after the charges have been preferred, 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, but the
separation authority may direct a general discharge or an honorable
discharge if such is merited by the soldier's overall record and if the
soldier's record is so meritorious that any other characterization clearly
would be improper.

27.  AR 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, 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.

28.  The above referred to regulation also defines a general discharge as a
separation from the Army under honorable conditions.  When authorized, it
is issued to a soldier whose military record is satisfactory but not
sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for separation specifically allows such characterization.

29.  The statements, which were submitted by the applicant's relatives and
friends, are noted.  These statements are supportive of an upgrade of the
applicant's discharge.
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was discharged under the
provisions of AR 635-200, Chapter 10, for the good of the service, in lieu
of trial by court-martial.

2.  In connection with his discharge, the applicant was afforded the
opportunity to consult with legal counsel and to make a statement in his
own behalf before submitting his request for discharge.

3.  The statement made under oath by the applicant in connection with his
request for discharge was believed to be true by those in the chain of
command who were responsible for acting upon his request for discharge.

4.  The applicant now claims that the statement made in connection with his
discharge was coerced and contain statements that are not true.  However,
there is no evidence that the statement was coerced.

5.  In his present application to the Board, the applicant states that he
was appointed a squad leader and received a promotion to Private, E-2, out
of basic combat training; that after advanced individual training, he
received a promotion to the rank of Private First Class; that during this
time, he never received any oral reprimands; and that he was put into the
position of tank commander.

6.  The evidence of record does not support the applicant's statements that
he was promoted to the rank of Private E-2 on completion of basic combat
training or while in basic combat training.  The applicant completed basic
combat training on 22 May 1969.  He was advanced to Private, E-2, on 20
July 1969.

7.  The evidence of records supports his statement that he was promoted to
the rank and pay grade Private First Class, E-3, on completion of his
advanced individual training.

8.  The evidence of record fails to show that he was assigned the duties of
squad leader in basic combat training and, there is no evidence that he was
assigned the duties of tank commander while he served in Vietnam.  While in
Vietnam he was an Armored Vehicle Driver.

9.  From the evidence of record, it appears that all requirements of law
and regulation were met and the rights of the applicant were fully
protected throughout the separation process.  The characterization
of service for this type of discharge is normally under other than
honorable conditions and it is believed that the applicant was aware of
that prior to requesting discharge.  Finally, the applicant’s entire record
of service for the period under review was considered.  It is believed that
the reason for discharge and the characterization of service were both
proper and equitable.

10.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 7 May 1986; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 6 May 1989.  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

ym   ____  fe   _____  rtd  _____  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.




                                  ____       Fred Eichorn___
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004103549                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050106                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19701104                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 10                  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  360  |144.0000                                |
|2.  394 A01.33          |144.0133                                |
|3.  412 A01.51          |144.0151                                |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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