RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 December 2005
      DOCKET NUMBER:  AR20050002679


      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. W. W. Osborn. Jr.             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Leonard G. Hassell            |     |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 undesirable discharge be upgraded to
honorable.

2.  The applicant states that he served honorably from 1965 to 1970, but
the last tour in Vietnam did something to him.  When he returned to Vietnam
approximately 50 percent of the troops, officer and enlisted, were on
drugs.  You could not count on anything.  He had been a noncommissioned
officer (NCO) with 18 months experience in the war zone and a drill
sergeant when they tried to make him work for an inexperienced, "Shake and
Bake" NCO.  When he tried to demand respect for his time in grade and
experience, he was transferred.  All he could do was keep his mouth shut
and finish his 5 months.

3.  "In one instance with my new company the driver of my quad fifty truck
in route to LZ Lonely was high on drugs.  I told him to stop speeding and
to pull over [for me] to relieve him as driver and he laughed.  He sped up,
missed a curve and turned the truck over sending four men to the hospital.
I received a broken collarbone and never seen where the others went after
that.…I did the rest of the tour and was sent to Fort Bliss Texas to a unit
that was building to go to Vietnam. I think you can take it from there."

4.  He has been out of the Army for 30 years, has never been in trouble
with the law and would fight for his country in any war, "just as long as
conditions are better than they were then."  He did not leave the country.
To him, those who left are traitors.  Yet, he says, they were let back
"into the country that I put my life on the line for."

5.  The applicant provides only his own statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 7 September 1972.  The application submitted in this case is
dated 12 February 2005.

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.  The applicant's military records show he enlisted and entered active
duty on 12 April 1965.  He completed training as an indirect fire
infantryman and was awarded military occupational specialty (MOS) 11H.  He
served in Vietnam as an ammunition bearer with Headquarters and
Headquarters Company (HHC), 2nd Battalion 18th Infantry Regiment from 18
September 1965 to 9 September 1966 and was awarded the Combat Infantryman
Badge.

4.  He returned to the United States, was advanced to pay grade E-4 on
18 October 1966.  From January 1967 he served in various training
assignments, including as drill instructor.  He was promoted to sergeant (E-
5) on 19 January 1968.  In November 1968 he was transferred to Germany.  On
31 January 1969 the applicant was assigned as an assistant squad leader, a
pay grade E-6 position, with HHC 2nd Battalion, 54th Infantry Regiment.  On
25 June 1970 he reenlisted for assignment back to Vietnam.

5.  In Vietnam, he served with the 4th Battalion, 60th Artillery from 7
September 1970 to 13 February 1971 when he was transferred to E Battery,
41st Artillery.  Medical records show that he suffered a fractured
collarbone in a truck accident on 24 March 1971.  The line of duty
determination is not contained in the available records.

6.  The applicant was transferred back to the 4th Battalion, 60th Artillery
on 12 May 1971.  He received nonjudicial punishment (NJP) under the
provisions of Article 15, Uniform Code of Military Justice on 14 June 1971
for being absent from his appointed place of duty.  He returned to the
United States on 28 October 1971 and reported to Fort Bliss, Texas.  On 1
November 1971, he received NJP for absence from his appointed place of duty
and was reduced to pay grade E-4.

7.  He was then AWOL from 10 December 1971 to 25 June 1972 and from
4 August to 22 August 1972.

8.  A 10 January 1972 memorandum from the battery commander to the brigade
commander speculated that, perhaps, the applicant had gone AWOL to avoid a
past due balance of $663.96 about which the company had received many
inquiries from an appliance buyers credit company.

9.  On 7 September 1972 the applicant was separated with an undesirable
discharge, characterized as under other than honorable conditions, for the
good of the service in lieu of trial by court-martial in accordance with
the provisions on Army Regulation 635-200, chapter 10.  The discharge
package is not contained in the available records.

10.  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.
Although an honorable or general discharge is authorized, a discharge
characterized as under other than honorable conditions is normally
considered appropriate.

11.  There is no indication that the Army Discharge Review Board ever
considered the applicant's case.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's combat service in Vietnam and the overall length of his
service is gratefully acknowledged.

2.  The applicant's frustration with the drug problems late in the Vietnam
war is certainly understandable as is his resentment at the perceived
slight in the lack of appreciation for his combat experience.

3.  Nevertheless, all of these factors taken together do not justify such
an extended AWOL by an experienced Soldier and former NCO.  Especially,
when there is no proffered explanation of how the applicant perceived AWOL
to be the solution to any problem.

4.  In the absence of evidence to the contrary, it is presumed that the
discharge proceedings were conducted in accordance with law and regulations
applicable at the time. The character of the discharge is commensurate with
his overall record.

5.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, 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 should have discovered the alleged error or
injustice now under consideration on 7 September 1972; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 6 September 1975.  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

__MJF___  _LGH___  __JNS __  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.




                                  __    John N. Slone____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051214                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1972                                    |
|DISCHARGE AUTHORITY     |AR 635-200, ch 10. . . . .              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |A70.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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