RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           9 December 2004
      DOCKET NUMBER:  AR2004106811


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Michael J. flynn              |     |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 that his discharge be changed to an honorable or
a  medical discharge.

2.  The applicant states that he was discharged for supposedly being absent
without leave (AWOL) but he had a mental breakdown and was not in his right
mind.  He had lost his memory standing over a Viet Cong he had killed.  For
over 30 years he felt guilty for pulling the trigger.  He prays to God to
forgive him for taking a life but he had orders to follow.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel makes no additional statement but provides a VA Form 21-4138
(Statement in Support of Claim); a 4th endorsement to the applicant's
request for discharge; an undated letter concerning an application to the
Army Discharge Review Board; and a court order changing the applicant's
name.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 24 March 1972.  The application submitted in this case is dated
29 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.  The applicant was inducted into the Army on 27 April 1970.

4.  While in basic combat training, the applicant accepted non-judicial
punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ)
for failing to go to his appointed place of duty.  He completed basic
combat training.

5.  While in advanced individual training (AIT), the applicant accepted NJP
under Article 15, UCMJ for wrongfully appearing for kitchen police duty
without laces in his boots and in an unclean uniform and for failing to go
to his appointed place of duty at the prescribed time.  He completed AIT
and was awarded military occupational specialty 12A (Pioneer).
6.  4 December 1970, the applicant accepted NJP under Article 15, UCMJ
  for being AWOL from the U. S. Army Overseas Replacement Station from
   12 November to on or about 1 December 1970.

7.  On 13 January 1971, the applicant accepted NJP under Article 15, UCMJ
  for being AWOL from the U. S. Army Overseas Replacement Station from
   29 December 1970 to on or about 4 January 1971.

8.  The applicant arrived in Vietnam and was assigned to Company A, 577th
Engineer Battalion on 28 January 1971 where he performed duties as a 62G20,
Quarryman.

9.  On 29 June 1971, the applicant was convicted by a special court-martial
of assaulting another Soldier by striking at him with his foot.  His
approved sentence was a forfeiture of $40.00 pay for 3 months and to be
reduced to pay grade E-1.

10.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he
departed AWOL on 1 November 1971 and returned to military control on
   19 December 1971.  It also shows he departed AWOL on 27 December 1971
and returned to military control on 31 January 1972.

11.  On 24 March 1971, the applicant completed a separation physical
examination and was found qualified for separation.  He indicated on his
Report of Medical Examination that he was in good health.

12.  The court-martial charge sheet and the applicant's request for
discharge are not available.  On 27 October 1971, the appropriate authority
approved the request and directed the applicant receive an Undesirable
Discharge Certificate.

13.  On 24 March 1972, the applicant was discharged on temporary records
with an undesirable, under other than honorable conditions discharge, in
pay grade  E-1, under the provisions of Army Regulation 635-200, chapter
10, discharge in lieu of trial by court-martial.  He had completed 1 year,
8 months, and 27 days of creditable active service.  His DA Form 20 shows
he had 91 days of lost time.

14.  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
submit a request for discharge for the good of the service in lieu of trial
by court-martial.  The request may be
submitted at any time after charges have been preferred and must include
the individual’s admission of guilt.  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.

15.  Army Regulation 635-200, in pertinent part, states that an honorable
discharge is a separation with honor.  The honorable characterization is
appropriate when the quality of the soldier’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.  A general discharge is a separation from the Army
under honorable conditions.  It is issued to a soldier whose military
record is satisfactory but not sufficiently meritorious to warrant an
honorable discharge.

16.  Army Regulation 635-40 governs the evaluation of physical fitness of
soldiers who may be unfit to perform their military duties because of
physical disability.  The unfitness is of such a degree that a soldier is
unable to perform the duties of his office, grade, rank or rating in such a
way as to reasonably fulfill the purposes of his employment on active duty.


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant began a pattern of
misconduct, to include periods of AWOL, prior to arriving in Vietnam.
There is no evidence to show that he went AWOL while in Vietnam only
because he was not in his right mind after killing a Viet Cong.  There is
no evidence of record to show he had a mental breakdown.  There is no
evidence of record to show that he was otherwise physically unfit for duty.
 He indicated his health was in good condition at the time he separated.

2.  In the absence of evidence to the contrary, it is presumed that the
applicant's discharge proceedings were conducted in accordance with law and
regulations applicable at the time.  Considering his record of misconduct,
the characterization of his service as undesirable was appropriate.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 24 March 1972; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on          23 March 1975.  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___  __lds___  __mjf___  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                 |AR2004106811                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041209                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19720324                                |
|DISCHARGE AUTHORITY     |AR 635-200, ch 10                       |
|DISCHARGE REASON        |A70.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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