RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 September 2005
      DOCKET NUMBER:  AR20050004444


      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. Rene R. Parker                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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 under other than honorable conditions
discharge be upgraded.

2.  The applicant states, in effect that reasonable consideration was not
applied in rendering his discharge in light of the current situation in
Vietnam, his performance of duty, and mental competence.

3.  The applicant provides his self authored statement, Honorable Discharge
Certificate, and Certificate of Military Service.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 21 June 1972, the date of his discharge.  The application
submitted in this case is dated 30 November 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.  The applicant’s record shows he enlisted in the Regular Army and
entered active duty on 25 January 1968.  He was trained in, awarded, and
served in military occupational specialty (MOS) 64A10 (Light Vehicle
Driver) which was later changed to MOS 64B20 (Heavy Vehicle Driver).  The
highest rank he attained while serving on active duty was specialist
four/pay grade E4.  The applicant’s record also shows he received an
honorable discharge on 19 Jun 1970 and reenlisted on 20 June 1970.

4.  Records show the applicant served in the Republic of Vietnam during the
period 15 Feb 1969 through 11 Oct 1970, a period of 20 months.

5.  The applicant’s DD Form 214 (Armed Forces of the United States Report
of Transfer or Discharge) shows he received the National Defense Service
Medal, Vietnam Service Medal with two bronze service stars, Overseas Bar,
and the Marksman (Rifle) Badge.
6.  On 8 July 1968, nonjudicial punishment (NJP) was imposed against the
applicant for being absent without leave (AWOL) from the period 5 July 1968
through 7 July 1968.  His punishment consisted of fourteen days extra duty,
restriction to the company area for fourteen days, and reduction to the
grade of Private/E-1.

7.  On 20 February 1970, NJP was imposed against the applicant for being
AWOL from the period 31 January 1970 through 12 February 1970.  His
punishment consisted of forfeiture of $65.00 per month for one month and
fourteen days extra duty.

8.  On 20 July 1970, NJP was imposed against the applicant for failure to
go at the time prescribed to his appointed place of duty.  His punishment
consisted of forfeiture of $25.00 per month for one month.

9.  On 2 June 1971, the applicant was convicted by a summary court-martial
of being AWOL from the period 1 March 1971 through 16 April 1971 and
         4 May 1971 through 10 May 1971.  His punishment consisted of
forfeiture of $69.00 per month for one month and reduction to the grade of
Private/E-1.

10.  On 11 February 1971, the applicant was convicted by a summary court-
martial of being AWOL from the period 25 November 1970 through 23 January
1971.  His punishment consisted of forfeiture of $30.00 per month for one
month and reduction to the grade of Private/E-2.

11.  On 11 May 1971, the applicant acknowledged receipt of a certificate of
unsuitability for reenlistment and elected not to make a statement.  On 19
May 1971, the certificate was approved, for the approving authority, by the
Acting Assistant Adjutant General.

12.  On 14 April 1972, the applicant consulted with his counsel and
requested a discharge for the good of the service in lieu of trial by court-
martial under the provisions of Chapter 10 of Army Regulation 635-200.

13.  The applicant signed his request for discharge which showed that he
was making the request under his own free will; that he was afforded the
opportunity to speak with counsel; that he may be furnished an Under Other
Than Honorable Conditions Discharge Certificate; that he may be deprived of
many or all Army benefits; that he may be ineligible for many or all
Veterans Administration benefits; and that he may expect to encounter
substantial prejudice in civilian life because of discharge under other
than honorable conditions.  The applicant provided a statement on his
behalf.
14.  In the applicant’s statement, dated 13 April 1972, he explains the
murder of his father.  He states this incident occurred during his absence
from military control and requested authorized personnel to take this
information into consideration.

15.  On 17 May 1972, the captain in command of the Personnel Control
Facility at Fort Gordon, Georgia, forwarded the recommendation for the
applicant's separation under the provisions of Army Regulation 635-200,
Chapter 10, for the good of the service.  The commander cited the
applicant’s record of indiscipline.  He recommended approval of the Chapter
10 and issuance of an undesirable discharge.

16.  On 23 May 1972, the lieutenant colonel in command of Headquarters
Command, U.S. Army School/Training Center and Fort Gordon, recommended
approval of the discharge action.  He also recommended that the applicant
be issued an Undesirable Discharge Certificate under other than honorable
conditions.

17.  On 25 May 1972, the major general in command of U.S. Army
School/Training Center and Fort Gordon, approved the applicant’s discharge
under the provisions of Chapter 10 of Army Regulation 635-200 with an
Undesirable Discharge Certificate.

18.  The applicant's DD Form 214 shows that he was discharged under other
than honorable conditions on 21 June 1972.  The applicant had 3 years,
2 months and 13 days of creditable service and 426 days lost due to AWOL.

19.  On 7 Aug 1980, the applicant appealed to the Army Discharge Review
Board (ADRB) to upgrade his discharge.  On 15 October 1981, the ADRB
considered his case and voted 3 to 2 not to change the characterization of
his service.  In reaching its decision, the ADRB specifically considered
his prior honorable service, the length of his service in Vietnam, as well
as his mental status.  The ADRB case summary verified that the applicant’s
mental status evaluation was not on file.  However, the ADRB stated that
the applicant’s separation physical was marked normal and the applicant was
found qualified for separation.

20.  In support of his application the applicant provided his self-authored
statement.  In his statement the applicant explains that he is unable to
appear before the Board as previously requested due to his medical
problems.  He maintains that he was mentally affected before he returned
from Vietnam and is currently under mental health care.  The applicant
states that he was incarcerated for several months at Fort Gordon after he
was arrested for being AWOL.  He said once he explained his Vietnam service
to his doctor, he was sent home early.  The applicant states he thought he
was signing for a hardship discharge until he received the bad discharge by
mail.  He concluded that he has no documented evidence to prove this, but
feels that his records will verify his claim.

21.  The applicant also provided his Honorable Discharge Certificate, dated
      19 June 1970, and a copy of Certification of Military Service.  These
documents verify that the applicant received an honorable discharge for
active service from 25 January 1968 through 19 June 1970.  Additionally,
the document verifies that the last grade the applicant held was Specialist
and indicates that the applicant is eligible for immediate reenlistment.

22.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations), 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.

23. Army Regulation 635-200 paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member's service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

24.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because it
was unjust.  He also argues that reasonable consideration was not given to
his situation in Vietnam, his performance of duty, and mental competence.
2.  Evidence of record shows the applicant’s request for separation under
provisions of chapter 10 of AR 635-200 for the good of the service to avoid
trial by court-martial was voluntary, administratively correct, and in
compliance with applicable regulations.

3.  While the circumstances surrounding the murder of the applicant’s
father is unfortunate, there is no evidence to indicate that the approving
authority did not take the applicant’s statement into consideration.  There
is also no evidence that indicates that the approving authority was unaware
of the situation in Vietnam and could not render a rational decision
concerning the applicant’s discharge.  Absent such evidence, regularity
must be presumed in this case

4.  The ADRB stated, in their case summary, that the applicant’s physical
was marked normal and that the applicant was found qualified for
separation.  Therefore, the applicant’s contention is contrary to the facts
in this case.

5.  The certificates the applicant provides support his contention that his
service prior to his reenlistment did merit an honorable discharge.
However, the certificates do not provide any evidence that the applicant
was not afforded due process and the discharge does not accurately reflect
his overall record of service.

6.  The applicant’s record of service included three nonjudicial
punishments and two special courts-martial for AWOLs in excess of 426 days.

7.  Based on this record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  This misconduct and lost time also renders his service
unsatisfactory. Therefore, he is not entitled to either a general or an
honorable discharge.

8.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the Army Discharge Review
Board on 15 October 1981.  As a result, the time for the applicant to file
a request for correction of any error or injustice expired on 14 October
1984.  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

_RLD_____  _JRM___  _SLP __  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.




                                      ___Shirley L. Powell______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004444                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005/09/13                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19720621                                |
|DISCHARGE AUTHORITY     |AR 635-200. . . . .                     |
|DISCHARGE REASON        |Chap 10                                 |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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