RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           22 December 2005
      DOCKET NUMBER:  AR20050008093


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Ted S. Kanamine               |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Ms. Jeanette B. McPherson         |     |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 (UD)
be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that the reasons for his being drafted
were deceitful, lies, illegal, and criminal.  He further states that his
actions were therefore the result of an illegal action that was forced on
him.

3.  The applicant provides the following documents in support of his
application:  Essay, 40th Anniversary of the Gulf of Tonkin Incident;
American University Law Review, Volume 17, dated 3 June 1968, Subject:  War
Crimes and The Vietnam War; National Security Agency (NSA() Tonkin Gulf
Intercepts; Vietnam War History, Tonkin Gulf Incident; Journal of Law
Reform Document, Subject:  The Constitutionality of the Vietnam War;
Nuremberg Tribunal Definition; and Fair and Accuracy in Reporting Document,
Subject: 30-Anniversary:  Tonkin Gulf Lie Launched Vietnam War.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 25 March 1969.  The application submitted in this case is
dated 23 May 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 were not made available to the Board.
This case is being considered using reconstructed records, which primarily
consist of the applicant’s separation document (DD Form 214).

4.  The applicant’s DD Form 214 shows he was inducted into the Army and
entered active duty on 10 December 1968.

5.  On 20 January 1968, while still in training, the applicant departed
absent without leave (AWOL) from his unit.  He remained away for 69 days
until being returned to military control on 24 March 1969.

6.  On 25 March 1969, the applicant was separated under the provisions of
Army Regulation 635-212, by reason of unfitness (frequent involvement in
incidents of a discreditable nature with civil and military authorities),
and he received an UD.  At the time, he had completed 1 month and 11 days
of creditable active military service.

7.  The applicant provides six documents that address the legitimacy of the
Vietnam War in support of his application.

8.  Army Regulation 635-212, in effect at the time, set forth the basic
authority, established the policy, and prescribed the procedures for
separating members for unfitness.  An undesirable discharge was normally
considered appropriate for members separating under these provisions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the reason he was drafted was based on
lies, deceit and was illegal and criminal and the supporting documents he
provided were carefully considered.  However, the factors raised by the
applicant are based on debate and opinion, and they have no legal or
regulatory value regarding the propriety and equity of his discharge.

2.  The evidence is void of the specific facts and circumstances
surrounding his discharge processing.  However, it does contain a properly
constituted DD Form 214 that identifies the reason and characterization of
the applicant’s discharge.  The applicant authenticated this document with
his signature on the date of his separation.  Therefore, Government
regularity in the discharge process is presumed.  Absent evidence to the
contrary, it is presumed that all requirements of law and regulation were
met, and that the rights of the applicant were fully protected throughout
his discharge processing.

3.  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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 March 1969, the date of his
discharge.  Therefore, the time for him to file a request for correction of
any error or injustice expired on 24 March 1972.  He failed to 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

___TSK _  ___RLD__  __JBM  _  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.




            ____Ted S. Kanamine____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050008093                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/12/22                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1969/03/25                              |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]