RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          25 January 2005
      DOCKET NUMBER:  AR2004105372


      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:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. James E. Anderhom             |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 a general discharge (GD) under honorable conditions.

2.  The applicant states, in effect, that he completed the required
training and he was assigned to the Central Highlands of Vietnam, which
includes the area around Pleiku, Vietnam.  He spent a year in a combat
environment and was exposed to conditions and experiences that will affect
him for the rest of his life.  He returned to the United States angry and
he did not care about anything, to include soldiering.  His respect for
authority waned and his life fell apart.  He left his unit absent without
leave (AWOL) on several occasions.  On some occasions, he had a pass and
just failed to sign out.  He recently learned that he was experiencing
posttraumatic stress disorder.  He regrets that he did not complete his
military service obligation and requests that the Board take into
consideration all of the factors that affected his service, to include the
circumstances to which he was subjected and the impact that they had on
him.  He also requests that the Board take into consideration the fact that
he received several awards to include the Vietnam Service Medal with two
bronze service stars, Vietnam Campaign Medal with Device 60, Vietnam
Gallantry Cross Unit Citation with Palm, Army Commendation Medal with oak
leaf cluster, and the Combat Infantryman Badge.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 14 October 1971.  The application submitted in this case is
dated 5 March 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.  On 4 March 1969, the applicant enlisted in the Regular Army for 3
years.  He completed the training requirements and he was awarded military
occupational specialty (11B) (Infantryman).  He served in Vietnam from 29
July 1969 to
25 July 1970.
4.  On 28 October 1970, the applicant received two nonjudicial punishments
(NJP's) under the provisions of Article 15, Uniform Code of Military
Justice.  NJP was imposed against him for being AWOL from 7-16 October
1970, and for failure to go to his appointed place of duty at the time
prescribed on 17 and
20 October 1970.  His punishment included reduction from pay grade E-4 to
pay grade E-2, a forfeiture of $96.00 pay per month for 2 months, and 45
days of extra duty and restriction.  NJP was also imposed against him for
failure to obey a lawful general regulation by failing to keep his face
properly shaved on
26 October 1970.  His punishment included reduction from pay grade E-2 to
pay grade E-1.

5.  On 10 December 1970, a bar to reenlistment was approved against the
applicant.  The basis cited for the bar was his disciplinary record.  He
declined to make a statement.

6.  On 21 January 1971, the applicant was convicted by a special court-
martial of being AWOL from 27 December 1970 to 12 January 1971.  He was
sentenced to confinement at hard labor for 45 days (suspended for 6 months)
and a forfeiture of $35.00 pay for 2 months.

7.  On 22 February 1971, NJP was imposed against the applicant for
abandoning his duty station (weapons cleaning detail) on 18 February 1971.
His punishment included 14 days of extra duty and restriction.

8.  On 12 May 1971 and on 18 June 1971, NJP was imposed against the
applicant for failure to go to his appointed place of duty at the time
prescribed on 5 May and 18 June 1971.  His punishment included 14 days of
extra duty and restriction.

9.  On 12 July 1971, NJP was imposed against the applicant for failure to
go to his appointed place of duty at the time prescribed on 6 and 7July
1971.  His punishment included a forfeiture of $75.00 pay for 1 month, and
45 days of extra duty.

10.  On 14 July 1971, the commander notified the applicant that he was
being recommended for separation under the provisions of Army Regulation
635-212, based on the above misconduct offenses.  He was also notified of
the rights available to him.  On the same date, the applicant consulted
with legal counsel and requested a personal appearance before a board of
officers.

11.  On 17 August 1971, the applicant was notified that a board of officers
would convene to determine whether he should be discharged from the Army
under the provisions of Army Regulations 635-212 prior to his expiration of
service.
12.  On 10 September 1971, the applicant appeared before a board of
officers with counsel.  The board of officers determined that he was
undesirable for further retention in the military because of frequent
incidents of a discreditable nature with military authorities.  The board
of officers recommended that he be separated under the provisions of Army
Regulation 635-212, for unfitness with a UD.

13.  On 30 September 1971, the appropriate authority waived rehabilitative
requirements, approved the separation recommendation, and directed the
issuance of a UD.

14.  On 7 October 1971, NJP was imposed against the applicant for failure
to go to his appointed place of duty at the time prescribed on 16, 17, and
21 September 1971.  His punishment included a forfeiture of $40.00 pay for
1 month.

15.  On 14 October 1971, the applicant was discharged under the provisions
of Army Regulation 635-212, for unfitness with a UD.  He had completed 2
years,
6 months and 8 days of creditable military service and he had 33 days lost
time due to being AWOL.  The evidence available confirms that the applicant
did receive the awards that are shown in paragraph 2, to include the
National Defense Service Medal.

16.  On 4 January 1987, the Army Discharge Review Board denied the
applicant’s request for an upgrade of his discharge.

17.  Army Regulation 635-212, in effect at the time, set forth the basic
authority for the separation of enlisted personnel who were found to be
unfit or unsuitable for military service.  The regulation further provided,
in pertinent part, that service members discharged for unfitness would be
furnished a UD, unless circumstances warranted a general or honorable
discharge.

18.  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.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors, which would have jeopardized his rights.  The type of discharge
directed and the reason for the discharge was appropriate considering the
facts of the case.

2.  The applicant's entire record was taken into consideration, to include
his Vietnam service and his misconduct offenses.  The quality of his
service was not sufficiently meritorious to warrant an upgrade of his
discharge.

3.  There is nothing in the available record and the applicant has provided
nothing that indicates the offenses he committed were caused by
posttraumatic stress disorder or any other medical condition.

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 1 April 1987.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 30 March 1990.  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

__kan___  __jea___  __lmd___  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.



                                  Kathleen A. Newman
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004105372                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050125                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |19711014                                |
|DISCHARGE AUTHORITY     |AR635-212                               |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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