RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 July 2006
      DOCKET NUMBER:  AR20050016318


      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. G. E. Vandenberg              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 (UD) be upgraded.

2.  The applicant states that he was young and not properly advised.  He
has tried to correct his records, been denied, and has been frustrated by
the system. He has changed his life and is attempting to make a new life.

3.  The applicant provides a personal statement, copies of his DD Form
214 (Report of Transfer or Discharge), a 15 January 1971 DD Form 458
(Charge Sheet), a 16 April 1971 DD Form 458, a 31 May 1971 DD Form 493
(Extract of Military Records of Previous Convictions), a 11 June 1971 DD
Form
457 (Investigating Officer's Report), a 6 July 1971 Standard Form 88
(Report of Medical Examination), and five letters of support and character
reference.

CONSIDERATION OF EVIDENCE:

1.  The Board has been advised that the applicant's records could not be
located at the repository in St. Louis, Missouri.  A fire destroyed
approximately 18 million service members’ records at the National Personnel
Records Center in 1973.  It is possible that the applicant's records were
lost or misfiled as a result of that fire.

2.  Since the applicant’s military records are not available to the Board,
this case is being considered using reconstructed records, which consists
solely of the documentation provided by the applicant.

3.  The available records show the applicant entered active duty on 14
March 1969, completed training, and was assigned the military occupational
specialty (MOS) 76A (Supplyman).

4.  The applicant shown to have been assigned to duty in Vietnam for the
period from 15 September 1969 through 27 February 1971, 1 year, 5 months,
and 13 days.

5.  A 15 January 1971 DD Form 458 indicates the applicant was placed in
pretrial confinement, at the Long Binh Stockade, Long Binh, Republic of
Vietnam on 8 January 1971.  The applicant was charged with violation of the
Uniform Code of Military Justice (UCMJ):

      a.   Article 86 (Absence without leave) two specifications of being
absent without leave (AWOL) for the periods from 10 through 13 June 1970
and 17 through 24 June 1970;
      b.  Article 89 (Desertion), by being absent without authority and
with intent to remain away permanently for the period from 22 August 1970
through his apprehension on 6 January 1971; and

      c.  Article 128 (Assault) by striking a military policeman, who was
in the execution of his duties, in the face.

6.  A 16 April 1971 DD Form 458 indicates the applicant was placed in
pretrial confinement, at the Long Binh Stockade, Long Binh, Republic of
Vietnam on 21 March 1971.  The applicant was charged with violation of the
Uniform Code of Military Justice (UCMJ):

      a.  Article 97 (Unlawful detention), by unlawfully apprehending a
military policeman, who was in the execution of his duties, and holding him
for the period from 1745 hours on 18 March 1971 through 0630 hours on
19 March 1971;

      b.  Article 121 (Larceny and wrongful appropriation) by appropriating
a military jeep on 18 March 1971; and

      c.  Article 128 (Assault) by threatening a specialist four military
policeman with a hand grenade.

7.  A DD Form 493, dated 31 May 1971 indicates that on:

      a.  1 February 1970 a summary court-martial found the applicant
guilty of disrespectful language and deportment toward a noncommissioned
officer (NCO), willfully disobeying an order from an NCO, and breaking
restriction; and

      b.  15 April 1970 a special court-martial found the applicant guilty
of disobeying a lawful order issued by the 35th Combat Support Company
Command.

8.  On 6 July 1971 the applicant was afforded a military medical
examination.  The Standard Form 88 indicates the purpose of the examination
was for discharge under Army Regulation 635-200, chapter 10.

9.  Although all of the discharge processing documentation is not
available, the evidence of record shows that the applicant was discharged
under the provisions of Army Regulation 635-200, Chapter 10, for the good
of the service in lieu of trial by court-martial.

10.  The applicant was separated under the provisions of Army Regulation
635-200, chapter 10 on 30 July 1971.

11.  The 30 July 1971 DD Form 214 lists his awards as the National Defense
Service Medal, the Vietnam Service Medal, and the Sharpshooter Marksmanship
Qualification Badge.  It list 200 days of lost time as 4 – 8 February 1970,

10 – 13 July 1970, 18 – 23 June 1970, 20 October 1970 – 7 January 1971,
11 January 1971 – 13 February 1971, and 14 February 1971 – 18 March 1971.

12.  The five letters of recommendation and support describe the applicant
as an honest, trustworthy, and dedicated individual.  They indicate that he
has donated a number of hours as a volunteer with the local museum,
homeless veteran's center, and his church.

13.  There is no indication the applicant applied to the Army Discharge
Review Board within its 15 year filing statute of limitations.

14.  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 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.  However, at the time of the applicant's separation the
regulation provided for the issuance of an undesirable discharge.

15.  The Manual for Courts-Martial, Table of Maximum Punishments, sets
forth the maximum punishments for offenses chargeable under the UCMJ.  A
punitive discharge is authorized for offenses under Article 86, for periods
of AWOL in excess of 30 days; Article 89, desertion; Article 121, larceny
and wrongful appropriation; and Article 128, assault.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The Board notes the applicant’s post service activities, however, these
activities are not so exceptionally meritorious as to outweigh the very
serious offenses committed in a combat zone that resulted in his discharge.

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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__EEM___  __JCR__  ___JTM _  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

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.




                                  _         John T. Meixell________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050016318                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060727                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |Deny                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144 upgrade                             |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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