RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 JULY 2006
      DOCKET NUMBER:  AR20050015180


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Ms. Carmen Duncan                 |     |Member               |
|     |Ms. Jeanette 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 defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's records be corrected by upgrading
his discharge to honorable or general.

2.  Counsel states that the applicant had two periods of honorable service
and had countless "Excellent" performance evaluations throughout his
military service.  He was injured while serving in Vietnam when a tank he
was riding in was hit by rocket propelled grenades, the tank burst into
flames killing the driver, and severely burning him (applicant).  When he
returned to the states he suffered from post-traumatic stress disorder
(PTSD) and went absent without leave (AWOL) on various occasions.  He was
eventually court-martialed and given an undesirable discharge.  He feels
because of the injuries he received his discharge should be upgraded so
that he can receive Department of Veterans Affairs (VA) benefits

3.  Counsel provides copies of the applicant's DD Forms 214 (Armed Forces
of the United States Report of Transfer or Discharge), dated 7 July 1969
and
30 October 1970; DD Form 214 (Report of Separation from Active Duty), dated
5 November 1974; his DA Form 20 (Enlisted Qualification Record); his
request to extend his overseas assignment; his clearance record; documents
showing his request for reassignment for medical reasons; his denial of VA
benefits; his commander’s approval of his undesirable discharge; and two
letters of support from individuals who served with him in Vietnam, in
support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred
on 5 November 1974.  The application submitted in this case is dated 12
October 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 enlisted in the Regular Army on 27 September 1968, for a
period of 3 years.  He was honorably discharged for immediate reenlistment
on
7 July 1969 and 30 October 1970.  He served in Korea and Vietnam.

4.  On 9 September 1971, the applicant accepted nonjudicial punishment
(NJP) under the provisions of Article 15, Uniform Code of Military Justice
(UCMJ) for being AWOL from 3 September 1971 to 9 September 1971.  His
punishment was extra duty and a forfeiture of pay.

5.  On 28 December 1971, the applicant accepted NJP under the provisions of
Article 15, UCMJ, for disobeying a lawful order to get out of bed and get
dressed, and for being AWOL on 21 December.  His punishment was extra duty,
restriction and a forfeiture of pay.

6.  On 5 April 1972, he was convicted by a special court-martial of being
AWOL from 17 January 1972 to 7 February 1972, 1 March 1972 to 6 March 1972,
and 23 March 1972 to 26 March 1972.  His sentence was reduction to pay
grade E-3, and 45 days of restriction.

7.  On 27 July 1973, he accepted NJP under the provisions of Article 15,
UCMJ, for being absent from the base without an overnight pass.  His
punishment was restriction.

8.  On 11 June 1974, he accepted NJP under the provisions of Article 15,
UCMJ, for being AWOL on 13 May 1974 and from 23 May 1974 to 28 May 1974,
and for operating a passenger car while drunk.  His punishment was
reduction to Private E-1, extra duty, forfeiture of pay, and restriction.

9.  In September 1974, a medical examination and a Mental Status Evaluation
cleared the applicant for separation.

10.  On 3 September 1974, the applicant was notified by his commander that
he was initiating action to separate him from the service for unfitness
under the provisions of Army Regulation 635-200, Chapter 13, for frequent
incidents of a discreditable nature with civil or military authorities.  He
was advised of his rights.


11.  On 6 September 1974, after consulting with legal counsel, the
applicant acknowledged that he had been advised of the basis for his
commander’s intent to separate him for unfitness.  The applicant waived
consideration of his case by a board of officers, waived representation by
legal counsel, and elected not to submit statements on his own behalf.  He
further acknowledged that he understood that if he received an undesirable
discharge he may encounter substantial prejudice in civilian life, and may
be ineligible for many or all benefits as a veteran under both Federal and
State laws.

12.  On 6 September 1974, his commander recommended his elimination from
the service, under the provisions of Army Regulation 635-200, Chapter 13,
for unfitness.  His commander noted that the applicant had been a serious
and continual disciplinary problem since his assignment to his unit.  His
continuous disregard for authority and complete lack of initiative and
responsibility led to his successive reduction from Specialist Four to
Private First Class.  His chronic AWOL behavior resulted in two Article
15's and court-martial proceedings.  He had repeated counseling sessions by
his superiors, which were completely ignored.  Frequent counseling and
disciplinary actions had no effect on the applicant's behavior.

13.  On 20 September 1974, his intermediate commander recommended approval
of his separation.

14.  On 18 October 1974, the appropriate separation authority approved the
applicant’s discharge, and directed his reduction to the lowest enlisted
grade and the issuance of an undesirable discharge.

15.  On 5 November 1974, the applicant was discharged under the provisions
of Army Regulation 635-200, Chapter 13, for unfitness.  His DD Form 214
indicates he had 3 years, 9 months, and 11 days of active service this
period, and 86 days of lost time.

16.  The applicant submits two letters of support from individuals who were
stationed with him during his tour in Vietnam who attest to his being
injured.

17.  The applicant also provides a copy of his DA Form 20, which shows that
he did receive an excellent rating from November 1969 to October 1970,
prior to his service in Vietnam; however, his rating dropped to
satisfactory and to fair and unsatisfactory from June 1971 to the time of
his discharge.


18.  Army Regulation 635-200 sets forth the policy and prescribes the
procedures for administrative separation of enlisted personnel.  Chapter
13, in effect at that
time, applied to separation for unfitness and unsuitability.  Paragraph 13-
5(a)1 provided for the separation for unfitness, which included frequent
incidents of a discreditable nature with civil or military authorities.
When separation for unfitness was warranted an undesirable discharge was
normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  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 and counsel have submitted neither probative evidence nor
a convincing argument in support of his request.  The contentions that he
had excellent performance evaluations throughout his military service is
without merit; he received an excellent rating from November 69 to October
1970, after which his rating dropped to satisfactory, fair, and
unsatisfactory.  The evidence clearly shows that his discharge resulted, in
part, from his chronic AWOL behavior and frequent counseling attempts that
were ignored.

4.  The contention that the applicant had two periods of honorable service
is without merit.  His honorable discharge certificates were not for full
periods of service, but were accomplished when the applicant was discharged
for the purpose of immediate reenlistment.

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 that requirement.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 5 November 1974; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
6 November 1977.  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

__JS____  ___CD __  ___JM __  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 Slone__________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050015180                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060711                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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