RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 January 2006
      DOCKET NUMBER:  AR20050005550


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Thomas M. Ray                 |     |Member               |
|     |Mr. Randolph J. Fleming           |     |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 discharge be upgraded to a
general discharge (GD) under honorable conditions.

2.  The applicant states, in effect, that he did not place other Soldiers
in danger and that he actually had medical problems, which resulted in
these charges.  He was not a coward in face of the enemy.

3.  In his affidavit, he states that his records will show that he did
volunteer for Vietnam in 1969, fainted of heat exhaustion in the jungle of
South Vietnam, ran away from his platoon in the jungles of South Vietnam in
1969, and was ordered to join his company.  He also states that if he is a
coward, why would he run away from safety with other Soldiers and thousand
of miles from where anything was familiar?  As for traveling, where would
he go wandering in the jungle?  If he is a coward and afraid of the enemy,
why did he volunteer?  The record will state that he made unnecessary
noises endangering fellow Soldiers.  If he is a coward, he certainly thinks
that he would be as quiet as possible to keep from attracting the enemy.
He states that this whole thing happened because he was ill and did not
feel strong enough to go forward.  The military records of the United
States Army will show that a supply unit of the US Army refused to
transport supplies to fellow Soldiers in Iraq stating that their equipment
lacked the necessary armor attached to their trucks.  Thereafter a number
of them were given a GD.  He volunteered with no armor protection or trucks
to carry him around as a light weapons infantry (11B) and was proud to have
served.

4.  In his personal letter to the Board, he expressed dismay that his
application for review of his discharge by the Army Discharge Review Board
(ADRB) was not given him because his request was outside the statute of
limitations.  The period of time for review of records for an upgrade was
in question.  He was informed that he should have applied within 15 years
or less for a review; however, he read and saw on television that the reply
was untrue.  He is a veteran of the Vietnam War and received unwarranted
charges and a bad conduct discharge (BCD), which resulted from trumped up
charges by a biased platoon leader.

5.  The applicant provides a copy of his DD Form 214 (Report of Transfer or
Discharge), a copy of an affidavit, and a copy of a personal letter, in
support of his request.





CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 14 September 1970, the date of his discharge.  The application
submitted in this case is dated 28 March 2005, but was received on 11 April
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 entered active duty (AD) on
12 June 1969, as a light weapons infantryman (11B).  He was promoted to pay
grade E-2 on 12 October 1969.  He served in Vietnam from 14 December 1969
to 18 February 1970.

4.  Between 30 July and 7 November 1969, he received nonjudicial punishment
on five occasions under Article 15, Uniform Code of Military Justice
(UCMJ), for failure to obey a lawful order from a noncommissioned officer
(NCO), on two occasions; assault; breach of peace; and being disrespectful
in language toward an NCO, on two occasions.  His punishments consisted of
a reduction to pay grade E-1, forfeitures of pay, and restriction and extra
duties.

5.  The applicant underwent a psychiatric evaluation on 29 January 1970,
which diagnosed him as having a passive aggressive personality, chronic,
severe.  The psychiatrist determined that he met the retention standards
prescribed in Army Regulation 40-501, chapter 3, and that there was no
psychiatric disease or defect which warranted disposition through medical
channels.  He also determined that he was free from mental defect, disease,
was able to distinguish right from wrong and able to adhere to the right.
The psychiatrist indicated that he possessed the mental capacity to
understand the nature and serious of the charges and proceeding against him
and was intelligently able to cooperate or conduct himself in his own
defense.

6.  He was psychiatrically cleared for any administrative or judicial
action deemed appropriate by command.  The psychiatrist stated that
regardless of the outcome of judicial proceedings, it was his opinion that
the applicant was not suitable for
continued retention in the military.  The psychiatrist recommended that he
be considered for administrative separation under the provisions of Army
Regulation 635-212.

7.  At a special court-martial on 20 February 1970, the applicant entered
mixed pleas to numerous offenses under the UCMJ.  He pled not guilty to
willfully disobeying a lawful command from a commissioned officer, to get
up and join his squad within five minutes (Charge I).  He pled not guilty
to endangering the safety of his squad and platoon, which was his duty to
defend, by making excessive noise, moving around needlessly both within
and outside the ambush site, and showing a total lack of concern for the
safety of the ambush site (Charge II, specification I).  He pled not
guilty to running away from his squad and platoon with the intention to
avoid impending combat (Charge II, specification II).  He pled not guilty
to feigning illness to avoid assigned duties (Charge III).

8.  The applicant was found guilty of all charges and specifications.  His
sentence consisted of a forfeiture of $82.00 per month for 6 months,
reduction to pay grade E-1, confinement at hard labor for 6 months, and a
BCD.  The sentence was approved on 20 March 1970 and the record of trial
was forwarded to the Judge Advocate General (JAG) of the Army for review by
a Court of Military Review.

9.  The applicant was confined in the US Army Installation Stockade, in
Vietnam, pending completion of his appellate review.

10.  On 6 August 1970, the United States Army Court of Military Review
affirmed the findings and sentence as approved by the convening authority.

11.  At a summary court-martial on 4 September 1970, the applicant entered
mixed pleas to numerous offenses under the UCMJ.  He pled not guilty to
specification 1, of charge I, for failure to go to his appointed place of
duty on 28 August 1970, Mess Hall, 0930 hours.  He pled guilty to
specification 2 for failure to go to his appointed place of duty on
28 August 1970, Mess Hall, 1330 hours and, specification 3 for failure to
go to his appointed place of duty on 29 August 1970, Mess Hall, 0600 hours.
 He pled not guilty to Charge II for disobeying a lawful order from a
noncommissioned officer on 31 August 1970 and he pled not guilty to Charge
III for being disrespectful toward a commissioned officer on 31 August
1970.

12.  He was found not guilty of Specification 1, of Charge I; guilty of
Specification 2 and 3 of Charge I; guilty of Charge I; guilty of
Specification and Charge II; and guilty of Specification and Charge III.
His sentence consisted of hard labor for 1 month and a forfeiture of $88
pay per month for 1 month.  The sentence was approved and ordered duly
executed.

13.  On 14 September 1970, the applicant was discharged from the Army
pursuant to the sentence of a special court-martial and was issued a BCD.
He had served 9 months and 27 days of creditable service and had 157 days
of lost time due to confinement.

14.  The applicant applied to the Army Discharge Review Board (ADRB) for an
upgrade of his discharge on 6 January 1980.  The ADRB determined that his
discharge was proper and equitable and denied his request on 5 August 1981.

15.  Army Regulation 635-200, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  Paragraph 11-1(b) of
the regulation provided, in pertinent part, that an enlisted person would
be given a bad conduct discharge pursuant only to an approved sentence of a
general or special court-martial after completion of appellate review and
after affirmation of the sentence imposed.

16.  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.

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 U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (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.  Trial by court-martial was warranted by the gravity of the offense
charged.  Conviction and discharge were effected in accordance with
applicable law and regulation.
2.  The applicant has provided no evidence to show that his discharge was
unjust at the time of his offense.  He has not provided evidence sufficient
to mitigate the character of his discharge.

3.  The evidence shows that the applicant served in Vietnam for 2 months
and 7 days.  While in Vietnam, he received a special court-martial and was
found guilty of all specifications and charges.  One such charge, was, "to
get up and join his squad within five minutes" (Charge I) and "making
unnecessary noises endangering fellow Soldiers" (Charge II, specification
I).  The applicant's special court-martial is with merit and clearly shows
that he failed to follow instructions by his command and was punished
accordingly under the UCMJ.  It is also noted that prior to his special
court-martial that he had several other disciplinary infractions as evident
by his five Article 15s, under the UCMJ, and received a summary court-
martial after receipt of his special court-martial.

4.  The applicant alleges that he ran away from his platoon in the jungles
of Vietnam and that if he was a coward, why would he run away.  The
applicant asserts questions to events that occurred while serving on AD
that no can answer but himself.  He elaborates on several other events that
have been reported by the media, through TV or through hearsay.  The
applicant has provided no evidence, and there is none, to support his
allegations or to answer his own questions pertaining to his service in
Vietnam or to substantiate the events that have been reported by the media.

5.  The applicant also alleges that he fainted of heat exhaustion in the
jungles of Vietnam and that he did not feel strong enough to go forward.
However, his medical records are unavailable for review and there is no
evidence to show that he sought medical treatment or was provided medical
attention.

6.  The applicant's records clearly show that the applicant applied for an
upgrade of his BCD on 6 January 1980 to the ADRB, approximately 10 years
after his discharge, which was within the 15-year statute of limitations.
His upgrade was denied on 6 August 1981.  This evidence clearly shows that
the applicant was aware of the statute of limitations on applying for an
upgrade.  The applicant's allegation that the period of time for review of
records for an upgrade was in question is without merit.

7.  In order to justify correction of a military record, the applicant must
show, to the satisfaction of the Board, or it must otherwise appear, that
the record is in error or unjust.  The applicant has failed to submit
evidence that would satisfy this requirement.

8.  Records show the applicant exhausted his administrative remedies in
this case, when his case was last reviewed by the ADRB, on 5 August 1981.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 4 August 1984.  However,
the applicant did not file within the 3-year statute of limitations and he
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

_RJF____  _WDP___  __TMR__  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.




                                  ____William D. Powers_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050005550                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060105                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19700914                                |
|DISCHARGE AUTHORITY     |AR .635-200, chapter 11                 |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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