RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           19 January 2005
      DOCKET NUMBER:  AR2004106958


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Larry C. Bergquist            |     |Member               |
|     |Ms. Delia R. Trimble              |     |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 an honorable discharge (HD).

2.  The applicant states, in effect, that his counselor was not present
during his discharge and this violated his Constitutional rights.

3.  The applicant provides no documentary evidence in support of his
application

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 12 January 1972.  The application submitted in this case
is dated
5 April 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’s record shows he was initially inducted into the Army
and entered active duty on 16 July 1968.  He was trained in and awarded
military occupational specialty (MOS) 11B (Infantryman).  His Enlisted
Qualification Record (DA Form 20) shows he served in the Republic of
Vietnam (RVN) from 15 January 1969 through 13 January 1970.  During this
tour, he was wounded in action on 6 October 1969 and received the Purple
Heart.  He also earned the Combat Infantryman Badge and Army Commendation
Medal.

4.  Item 33 (Appointments and Reductions) of the applicant’s DA Form 20
shows that he was promoted to specialist four (SP4) on 7 August 1968 and
this was the highest rank he held while serving on active duty.  On 13
September 1969, he was reduced to private first class (PFC) and on 5
November 1969, he was again promoted to SP4.  On 27 December 1971, he was
reduced to private/E-1 (PV1).
5.  The applicant’s Military Personnel Records Jacket (MPRJ) contains
documents confirming he accepted nonjudicial punishment (NJP) under the
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on
12 September 1969, for being disrespectful in language toward a superior
noncommissioned officer (NCO) and 26 March 1970, for being derelict in the
performance of his duties.

6.  On 23 April 1970, while serving at Fort Riley, Kansas, the applicant
was honorably discharged for the purpose of immediate reenlistment.  On 24
April 1970, he reenlisted for six years.

7.  On 8 June 1970, the applicant departed absent without leave (AWOL) from
his unit at Fort Riley and on 6 July 1970, he was dropped from the rolls of
his organization.  He remained away for 487 days until returning to
military control at Fort Leonard Wood, Missouri on 8 October 1971.  On 17
December 1971, a Charge Sheet (DD Form 458) was prepared preferring a court-
martial charge against the applicant for this period of AWOL.

8.  On 21 December 1971, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
maximum permissible punishment authorized under the UCMJ, the possible
effects of an UD, and of the procedures and rights that were available to
him.  Subsequent to receiving this legal counsel, the applicant voluntarily
requested discharge for the good of the service, in lieu of trial by court-
martial.  In his request for discharge, the applicant indicated that he
understood that by requesting discharge, he was admitting guilt to the
charge against him, or of a lesser included offense, that also authorized
the imposition of a bad conduct or dishonorable discharge.  He further
acknowledged he understood 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.

9.  On 27 December 1971, the separation authority approved the applicant’s
request for discharge and directed that he receive an UD and that he be
reduced to the lowest enlisted grade.  On 12 January 1972, the applicant
was discharged accordingly.  The DD Form 214 he was issued confirms he
completed a total of
2 years, 1 month and 5 days of creditable active military service and
accrued
504 days of time lost due to AWOL and confinement.



10.  On 1 April 1985, the Army Discharge Review Board (ADRB) considered the
applicant’s case and after carefully reviewing the facts and circumstances,
found the applicant’s discharge was proper and equitable.

11.  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 UD.

12.  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 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 claim that his Constitutional rights were violated was
carefully considered.  However, there is insufficient evidence to support
this claim.  His honorable service through 23 April 1970, which includes
his combat service in the RVN, is accurately documented on the DD Form 214
he was issued upon his honorable discharge for immediate reenlistment on 23
April 1970.

2.  The evidence of record confirms the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, he voluntarily requested
discharge from the Army in lieu of trial by court-martial.  The record
shows all requirements of law and regulation were met, the rights of the
applicant were fully protected throughout the separation process and there
is no evidence that suggests he was denied due process during the
separation process.

3.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 1 April 1985.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 31 March 1988.  However, he 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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___LCB_  __DRT___  ___BPI__  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.




            ____Bernard P. Ingold_____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004106958                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/01/19                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1970/04/24                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |In Lieu of Court Martial                |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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