RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        9 NOVEMBER 2006
      DOCKET NUMBER:  AR20060002961


      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:

|     |Ms. Margaret Patterson            |     |Chairperson          |
|     |Mr. Robert Rogers                 |     |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 records be corrected by upgrading his
discharge.

2.  The applicant states he was discharged due to his inability to adjust
to peacetime service after his duty in Vietnam.  His record indicates he
had performed his military duties with honor, rising to the rank of E-4
within a year.  He now suffers from type II Diabetes as a result of his
exposure to Agent Orange in Vietnam.  He has no medical insurance and his
health is deteriorating as a result of the diabetes and related illnesses.
His future health and survival will require the type of medical treatment
provided by the VA.  He has committed no violent crime or crime of moral
turpitude.  He requests that his entire military record be considered and
that his honorable wartime service be given appropriate weight when
deliberating his case.

3.  The applicant provides a copy of his DD Form 214 (Armored Forces of the
United States Report of Transfer or Discharge) and a copy of his DA Form
20 (Enlisted Qualification Record) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 20 December 1972.  The application submitted in this case is
dated 13 February 2006.

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 17 April 1970, for a
period of    3 years.  He successfully completed basic combat training at
Fort Knox, Kentucky, and advanced individual training at Fort Leonard Wood,
Missouri.  He served in Germany from September 1970 to March 1971, and in
Vietnam from May 1971 to January 1972.


4.  The applicant was promoted to the pay grades of E-2, E-3 and E-4 on
        17 August 1970, 22 September 1970 and 10 November 1970,
respectively.

5.  The applicant’s conduct and efficiency while in Germany was rated as
excellent.  However, his conduct in Vietnam fluctuated from fair in May
1971 to excellent in November 1971.

6.  On 14 June 1972, the applicant accepted nonjudicial punishment under
the provisions of Article 15, Uniform Code of Military Justice, for being
absent without leave (AWOL) from 30 May 1972 to 12 June 1972.  His
punishment was reduction to pay grade E-3, extra duty, restriction, and a
forfeiture of pay.

7.  On 19 September 1972, the applicant’s conduct and efficiency was rated
as unsatisfactory.

8.  On 12 October 1972, the applicant’s commander preferred court-martial
charges against him for being AWOL from 22 August 1972 to 3 October 1972.

9.  On 2 November 1972, after consulting with legal counsel, the applicant
voluntarily submitted a request for discharge for the good of the service,
under Army Regulation 635-200, Chapter 10, in lieu of trial by court-
martial.  He indicated he understood he could be denied some or all
veterans' benefits as a result of his discharge and that he may be deprived
of rights and benefits as a veteran under both Federal and State law.

10  His unit commander recommended approval of his discharge request, and
the issuance of an undesirable discharge.

11.  On 8 November 1972, after interviewing the applicant, his intermediate
commander recommended approval of his discharge request and the issuance of
an undesirable discharge.

12.  On 17 November 1972, the appropriate separation authority approved his
request and directed his reduction to Private E-1, and the issuance of an
undesirable discharge.

13.  On 20 December 1972, 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.  His DD Form 214 (Armed Forces of the United
States Report of Transfer or Discharge) indicates he had 2 years, 5 months
and 17 days of active service and 35 days of lost time.

14.  Army Regulation 635-200, then in effect, set forth the basic authority
for the separation of enlisted personnel.  Chapter 10 of that regulation
provided, in pertinent part, that a member who had committed an offense or
offenses for which the authorized punishment included a punitive discharge
could at any time after the charges had been preferred, submit a request
for discharge for the good of the service in lieu of trial by court-
martial.  At the time of the applicant’s separation, the regulation
provided for the issuance of an undesirable discharge, under other than
honorable conditions discharge.

15.  There are no medical files in the applicant’s available records and no
indication that he suffered an illness as a result of exposure to Agent
Orange.

DISCUSSION AND CONCLUSIONS:

1.  The applicant voluntarily requested separation under Army Regulation
635-200, Chapter 10, for the good of the service, to avoid a trial by court-
martial.

2.  The applicant’s administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
error which would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

4.  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.

5.  The Board notes the applicant's medical problems, however, his illness
does not warrant granting the relief requested.

6.  The applicant’s contention that he served honorably while in Vietnam is
without merit.  His conduct and efficiency rating fluctuated while in
Vietnam from fair to excellent.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 December 1972; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
19 December 1975.  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

___MP __  ___RR __  ___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.




                                  ____Margaret Patterson_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060002961                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061109                                |
|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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