RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 August 2005
      DOCKET NUMBER:  AR20050000203


      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. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Ms. Linda M. Barker               |     |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 be
upgraded to an honorable or a general discharge.

2.  The applicant states that his discharge was an injustice because orders
reassigning him to special services in the Republic of Vietnam were removed
from his 201 file.  He states that the removal of those orders was
ultimately the basis for his court-martial.

3.  The applicant provides no additional information in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 21 November 1972.  The application submitted
in this case is dated 11 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.  On 12 June 69, he enlisted in the Army in Montgomery, Alabama, for
3 years in the pay grade of E-1.  He was promoted to the pay grade of E-2
on 12 October 1969.  He went on to successfully complete his training as a
light weapons infantryman and on a date unknown to this Board, he was
promoted to the pay grade of E-3.

4.  The available records show that the applicant was at Fort Dix, New
Jersey, when nonjudicial punishment (NJP) was imposed against him on 8
January 1970, for being absent without leave (AWOL) from 27 December 1969
until 7 January 1970.  His punishment consisted of a forfeiture of pay,
restriction and a verbal reprimand.



5.  The applicant was in the Republic of Vietnam on 12 February 1971, when
he was convicted by a special court-martial of being AWOL from 3 August
1970 until 30 December 1970, and two specifications of disobeying a lawful
order.  He was sentenced to confinement at hard labor for 4 months; a
reduction to the pay grade of E-1 and a forfeiture of pay.

6.  The applicant's records show that on 25 March 1971, the unexecuted
portion of his sentence was suspended for two months.  He was released from
the stockade on 30 March 1971 and on 27 April 1971 the suspension was
vacated.

7.  On 6 May 1971, the applicant was confined in the stockade.  He escaped
from guards on 11 May 1971 and on 16 May 1971, he returned to military
control and was again confined in the stockade.

8.  On 18 June 1971, the unexecuted portion of the applicant's sentence was
remitted.  He was released from confinement and returned to his unit.

9.  In a information notification dated 2 August 1972, the Consul General
of the Republic of Vietnam, Embassy of the United States of America,
informed the applicant's commanding officer (CO) that two American citizens
had previously been detained by the Vietnamese National Police during the
evening of 13 August 1971 and were held at the Tan Binh Precinct Station,
Gia Dinh.  The Consul General stated that their names as recorded by the
National Police were Frank and Wilbert and that a consular officer, visited
them both 14 August 1971.  He stated that according to the Vietnamese
authorities, they were charged with theft, use of violence and illegal
possession of firearms and were remanded for continued detention by a
Vietnamese magistrate while the charges against them were investigated.
The Consul General stated that Frank claimed to be a terminated employee of
a United States (US) contractor operating in Vietnam and that both men were
sent to the Saigon Rehabilitation Center (Chi Hoa) on 17 August 1971 and
were held in custody until they were released by order of the magistrate on
19 October 1971, pending trial set for 23 November 1971.

10.  In the information notification the Consul General stated that neither
of the two men appeared at trial and that both were convicted in absentia
and sentenced to 6 months imprisonment.  He stated that the same person who
had been detained by the Vietnamese authorities under the name of Frank was
again detained by Vietnamese police on 13 December 1971 and turned over to
the Vietnamese Immigration Service in Saigon for verification of his
identity and Vietnamese visa status.  The Consul General stated that
although the individual


continued to claim to be Frank, the Chief of the investigation section of
Immigration Service informed the Embassy that the detainee did not resemble
the Frank that he knew to have worked as a US contractor until June 1971.
Although the Immigration Service believed that the detainee had assumed the
identity of Frank after he (Frank) departed Vietnam, the individual
continued claiming to be Frank even though he was advised that the police
had already concluded otherwise.  The Consul General stated that on 2
February 1972, Frank visited the Embassy, under Vietnamese police guard,
and applied for a US passport and that the application was referred by the
Embassy to the Passport Office of the Department of State, Washington, DC,
for consideration in view of the doubts of his identity.  The Consul
General further stated that on 9 June 1972, after being informed of the
Passport Office's response to his application, the detainee finally
revealed his true identity (the applicant in this case).  On 25 July 1972,
the Passport Office reported that the person who submitted the passport
application under the name of Frank, had been verified to be someone else
(the applicant in this case).  The applicant's commander was informed that
on 28 July 1972, the applicant was released by the Vietnamese Immigration
Police and he was returned over to the US Military Police.

11.  The available records show that the applicant was evacuated from
Vietnam and he was admitted to the Mental Health Clinic at Fort Benning,
Georgia, on 16 August 1972, as a result of a positive urine test for
opiates.  He denied conscious use of any drugs; however, he claimed that he
had a positive test because of a marijuana cigarette that was contaminated
with heroin.  On 17 August 1972, the applicant was returned to his unit
with a diagnosis of behavioral disorder (drug abuse).

12.  Charges were preferred against the applicant on 17 August 1972.  He
was charged with being AWOL from 18 June 1971 until 28 July 1972.  On 25
August 1972, after consulting with counsel, the applicant submitted a
request for discharge under the provisions of Army Regulation 635-200,
chapter 10, for the good of the service, in lieu of trial by court-martial.

13.  On 28 August 1972, the applicant underwent a mental status evaluation
and he was deemed to be mentally responsible; able to distinguish right
from wrong; able to adhere to the right; and to have the mental capacity to
understand and participate in board proceedings.




14.  The appropriate authority approved the request for discharge on
13 November 1972.  Accordingly, on 21 November 1972, the applicant was
discharged under the provisions of Army Regulation 635-200, chapter 10, for
the good of the service, in lieu of trial by court-martial.  The DD Form
214 that he was furnished at the time of his discharge shows that he
completed 1 year, 4 months and 9 days of net active service and that he had
approximately 636 days of lost time due to AWOL and confinement and he had
approximately 126 days of lost time subsequent to his normal expiration
term of service.  He was furnished an Undesirable Discharge Certificate.

15.  The applicant applied to the Army Discharge Review Board (ADRB) to
upgrade his discharge.  On 28 April 1980, the ADRB denied the applicant’s
request for upgrade.  The ADRB determined that the applicant’s discharge
was proper and equitable and that the discharge was properly characterized
as undesirable.

16.  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 undesirable discharge.

17.  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 United States 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 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.  It appears that the applicant's administrative separation was
accomplished in compliance with applicable regulations with no indication
of procedural errors, which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

3.  The applicant's contentions have been noted.  However, the available
records fail to substantiate his contention that orders reassigning him to
special services in the Republic of Vietnam were removed from his records
or that the removal of the alleged orders was what ultimately became the
basis for his being tried by a special court-martial.

4.  The evidence of record clearly shows that his acts of misconduct, to
include repeated AWOL offenses and disobeying lawful orders is what
ultimately led to his being tried and convicted by a special court-martial.
 Additionally, according to the information contained in his official
military records, it appears that he showed a total disregard towards
people who were in positions of authority and in view of his numerous acts
of misconduct, it does not appear that the issuance of an undesirable
discharge was unjust.

5.  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 this requirement.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 28 April 1980.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 27 April 1983.  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

__mkp___  __reb___  __lmb___  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.



                                        Margaret K. Patterson
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000203                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050825                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19721121                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chap 10                     |
|DISCHARGE REASON        |CHAPTER 10                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  689  |144.7000/FOR THE GOOD OF SERVICE        |
|2.  708                 |144.7100/CONDUCT TRIABLE BY CM          |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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