RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            18 JULY 2006
      DOCKET NUMBER:   AR20050017246


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. Patrick McGann                |     |Member               |
|     |Ms. Ernestine Fields              |     |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 be upgraded to
honorable.

2.  The applicant states, in effect, that he was told at the time of his
discharge that it would be upgraded after 10 years.  He further states that
he served in Vietnam and he believes that he is suffering from exposure to
Agent Orange.

3.  The applicant provides three third party character references with his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 9 August 1971.  The application submitted in this case is dated
28 November 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 records show that he was born on 18 April 1950 and he
was inducted in Memphis, Tennessee on 5 March 1970.  He completed his basic
combat training at Fort Bragg, North Carolina, and his advanced individual
training (AIT) as a cook at Fort Lee, Virginia.  He was advanced to the pay
grade of E-3 on 21 August 1970 and was transferred to Vietnam on 6 October
1970, for duty as a cook.

4.  On 25 November 1970, nonjudicial punishment (NJP) was imposed against
him for failure to go to his place of duty (guard duty).  His punishment
consisted of a reduction to the pay grade of E-2 (suspended for 30 days), a
forfeiture of pay, extra duty, and restriction.

5.  The applicant was advanced to the pay grade of E-4 on 27 January 1971
and while not explained in the available records, the applicant departed
Vietnam on 18 February 1971.  On 19 March 1971, he was attached to Fort
Campbell, Kentucky, for the purpose of submitting a request for a
compassionate reassignment.  His request was approved and he was reassigned
to Fort Campbell effective 1 April 1971.

6.  On 19 April 1971, NJP was imposed against him for being absent without
leave (AWOL) from 12 April to 18 April 1971.  His punishment consisted of a
reduction to the pay grade of E-3, a forfeiture of pay, and restriction.

7.  The applicant went AWOL on 8 May and remained absent in a deserter
status until he was returned to military control on 6 July 1971, when
charges were preferred against him for the AWOL offense.

8.  After consulting with counsel, the applicant submitted a request for
discharge for the good of the service in lieu of trial by court-martial.
In his request he stated that he understood that he may be discharged with
an undesirable discharge, that he understood the prejudice he may be
subjected to as a result of such a discharge, that he understood that he
would be deprived of many or all benefits and that he was not subjected to
coercion by anyone to submit such a request.  He also elected not to submit
a statement in his own behalf.

9.  He underwent a mental status examination on 22 July 1971 and was deemed
to be mentally responsible, able to distinguish right from wrong and to
adhere to the right.  He was cleared for any administrative action deemed
appropriate by the chain of command.

10.  The applicant’s chain of command indicated that the applicant had been
a disciplinary problem ever since his arrival in the unit and that he had
failed to respond to numerous counseling sessions.  His conduct and
efficiency were deemed unsatisfactory and they indicated that he showed no
signs of becoming an effective Soldier.   The appropriate authority
approved his request and directed that he be furnished an Undesirable
Discharge Certificate.

11.  Accordingly, he was discharged under other than honorable conditions
on 9 August 1971, under the provisions of Army Regulation 635-200, chapter
10, for the good of the service in lieu of trial by court-martial.  He had
served 1 year, 3 months, and 7 days of total active service and had 63 days
of lost time due to AWOL.

12.  There is no evidence in the available records to show that he ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that Board’s 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge
for the good of the service in lieu of trial by court-martial.  A condition
of submitting such a request is that the individual concerned must indicate
that they are submitting the request of their own free will, without
coercion from anyone and that they have been briefed and understand the
consequences of such a request as well as the discharge they might receive.
 An undesirable discharge is normally considered appropriate.  There have
never been any provisions for an automatic upgrade of such discharges.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, for the good of the service to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.  There were no violations of any
of the applicant’s rights.

2.  After being afforded the opportunity to assert his innocence before a
trial by court-martial, he voluntarily requested a discharge for the good
of the service to avoid a punitive discharge and a felony conviction on his
records.

3. The applicant’s contentions and supporting documents have been noted.
However, they are not sufficiently mitigating to warrant relief when
compared to his undistinguished record of service and the seriousness of
his misconduct.  His service simply does not rise to the level of a
discharge under honorable conditions.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 9 August 1971; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
8 August 1974.  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

___LE  __  ___PM__  ___EF  __  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.




                                  ______Lester Echols______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050017246                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060718                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1971/08/09                              |
|DISCHARGE AUTHORITY     |AR635-200/CH10 . . . . .                |
|DISCHARGE REASON        |GD OF SVC                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |                                        |
|1.144.7000/689/A70.00   |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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