RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         6 OCTOBER 2005
      DOCKET NUMBER:  AR20050000049


      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. Curtis Greenway               |     |Chairperson          |
|     |Mr. Richard Dunbar                |     |Member               |
|     |Ms. LaVerne Berry                 |     |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 undesirable discharge be upgraded.

2.  The applicant states he wishes to have his discharge upgraded for his
children and for his reputation.  In a letter to his congressional
representative he also indicated that he needed the discharge upgraded to
secure medical treatment from the Department of Veterans Affairs.  Letters
from several friends indicate the applicant is a fine individual and hard
working family man.

3.  The applicant provides three character references from friends.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 29 April 1971.  The application submitted in this case is
dated
16 December 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 limitations 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.  Records available to the Board suggest the applicant initially enlisted
and entered active duty as a Regular Army Soldier on 11 June 1968 and was
discharged for the purpose of reenlistment on 10 July 1969.

4.  The applicant successfully completed training and served a successful
tour of duty in Germany and Alaska before being assigned to a
transportation company in Vietnam.  By October 1969 he had been promoted to
pay grade E-4.

5.  In December 1969, however, the applicant was punished under Article 15
of the Uniform Code of Military Justice for failing to report to his place
of duty and driving a military vehicle in such a manner as to cause undue
stress on the drive train and tires.  He was punished again in April 1970
for driving a vehicle toward another individual who was walking in front of
the vehicle and failing to have his vehicle in proper operating condition.
In May 1970 he was punished for disobeying a lawful order.  By the time he
departed Vietnam in September 1970 he had been reduced to pay grade E-1.

6.  From Vietnam the applicant was reassigned to a transportation unit in
Germany.

7.  In December 1970 he was punished on two separate occasions under
Article 15 of the Uniform Code of Military Justice; once for being absent
from duty without authority and once for being intoxicated while on duty as
a sentinel.  In January 1971 he was punished for failing to obey an order
and for being unable to perform his duties because of intoxication.

8.  On 4 January 1971 multiple charges were preferred against the
applicant.  Charges included wrongful appropriation of a military vehicle,
reckless driving, operating a vehicle without a license, being out of
uniform, disobeying a lawful command and order, and being disrespectful
toward an officer and noncommissioned officer.

9.  After charges were preferred, the applicant consulted with counsel and
voluntarily requested discharge for the good of the service in lieu of
trial by court-martial under the provisions of Army Regulation 635-200,
Chapter 10.  His request acknowledged he understood the nature and
consequences of the undesirable discharge which he might receive.  He
indicated he understood he could be denied some or all veterans' benefits
as a result of his discharge and that he may be deprived of rights and
benefits as a veteran under both Federal and State law.  He did not submit
any statements on his own behalf.

10.  His request was approved and on 29 April 1971 the applicant was
discharged under other than honorable conditions and issued an Undesirable
Discharge Certificate.

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.




12.  Army Regulation 635-200 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.  It also notes that a general discharge, when authorized,
may be issued to a soldier whose military record is satisfactory but not
sufficiently meritorious to warrant an honorable discharge.

13.  The statements submitted in support of the applicant's petition are
from friends of the applicant who attest to his good character.

14.  There is no indication the applicant applied to the Army Discharge
Review Board to have his discharge upgraded.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he would like his discharge upgraded
for his children and his reputation is understandable, however, the
evidence does show that the applicant successfully completed training and
served without incident for more than a year before his first incident of
misconduct, and had attained the pay grade of E-4, all indications that he
was capable of honorable service.  Unfortunately, the fact that he now may
regret the events that resulted in his under other than honorable
conditions discharge, wishes or needs to receive veterans' benefits, and
that his friends see him as good and hardworking individual, is not
sufficiently mitigating to warrant an upgrade of the character of that
discharge as a matter of equity.

2.  The applicant has submitted neither probative evidence nor a convincing
argument in support of his request.

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 29 April 1971; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
28 April 1974.  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

___CG __  ___RD __  ___LB __  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.




                                  _____Curtis Greenway_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000049                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051006                                |
|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.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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