RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            03 October 2006
      DOCKET NUMBER:   AR20060003203


      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. Kenneth Wright                |     |Chairperson          |
|     |Mr. Thomas Ray                    |     |Member               |
|     |Ms. Sherry Stone                  |     |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 bad conduct discharge (BCD)
be upgraded to honorable and that his DD Form 214 be corrected to reflect
all of his awards and schools.

2.  The applicant states that his discharge was inequitable because it was
based on one isolated incident over a period of 60 months and 18 days of
service and that he was serving his second tour in Vietnam with no adverse
action.  He goes on to state that at the time of his discharge, he was told
that it would automatically be upgraded in 6 to 9 months without having to
request it.  He continues by stating that he was proud to serve his country
when he was needed and his family should be proud of him.  He also states
that he has two stepsons who served in the Marine Corps and he desires to
display his discharge along with theirs.  Additionally, his DD Form 214 is
incomplete and does not reflect all of his awards and training.

3.  The applicant provides a copy of his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice that
occurred on 21 May 1973.  The application submitted in this case is dated
21 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.  He enlisted in Detroit, Michigan, on 2 January 1968 for a period of 3
years and training as an infantryman.  He completed his basic combat
training at Fort Knox, Kentucky and his advanced individual training (AIT)
at Fort McClellan, Alabama.  Upon completion of his AIT, he was transferred
to Camp Greaves, South Korea, for duty as a light weapons infantryman.

4.  He was tried by a special court-martial on 30 August 1968 for
unlawfully killing a Korean Augmentation to the United States Army (KATUSA)
corporal by negligently shooting him in the thigh with his M-14 rifle.  He
pleaded not guilty and was found not guilty of the charge.  He was advanced
to the pay grade of E-3 on 12 November 1968.

5.  On 10 December 1968, nonjudicial punishment (NJP) was imposed against
him for disobeying a superior noncommissioned officer and for being
incapacitated for the proper performance of his duties due to his
overindulgence in intoxicating liquor.  His punishment consisted of a
reduction to the pay grade of E-2, a forfeiture of pay, extra duty, and
restriction.

6.  On 7 January 1969, NJP was imposed against him for being incapacitated
for the performance of his duties due to his overindulgence in intoxicating
liquor.  His punishment consisted of a reduction to the pay grade of E-1, a
forfeiture of pay, and restriction.

7.  He departed Korea on 28 June 1969 and was transferred to Fort Stewart,
Georgia.  He was advanced to the pay grade of E-4 on 27 February 1970 and
on 4 April 1970, he was transferred to Bamberg, Germany.

8.  On 17 May 1970, he was honorably discharged for the purpose of
immediate reenlistment and on 18 May 1970, he reenlisted for a period of 6
years, a variable reenlistment bonus (VRB), and assignment to Vietnam.  His
DD Form 214 issued at the time indicates that he had served 1 year, 2
months, and         13 days of foreign service and that his last overseas
tour was in United States Army, Europe (USAREUR).  His awards included the
National Defense Service Medal and the Armed Forces Expeditionary Medal for
his service in Korea.

9.  He was transferred to Vietnam on 18 July 1970 and was assigned to
Company A, 2nd Battalion (Airmobile), 506th Infantry Regiment.  He was
promoted to the pay grade of E-5 on 15 December 1970.

10.  He departed Vietnam on 17 August 1971 and was transferred to Fort
Hood, Texas, for approximately 4 months before being transferred to Fort
Bragg, North Carolina and then to Fort Bliss, Texas, for Vietnamese
Language Training by the Defense Language Institute – Southwest (DLISW) for
a period of 8 weeks.

11.  He was transferred back to Vietnam on 2 June 1972 and on 9 July 1972,
while assigned to the 7th Cavalry Regiment, nonjudicial punishment was
imposed against him for being drunk in guard mount formation.  His
punishment consisted of a forfeiture of pay.

12.  On 28 July 1972, NJP was imposed against him for being drunk and
disorderly in camp.  His punishment consisted of a reduction to the pay
grade of E-4 and a forfeiture of pay (suspended for 2 months).  He was
reassigned to the 11th Combat Aviation Group on 2 August 1972.

13.  On 27 October 1972, he was convicted by a special court-martial of
committing an assault upon a staff sergeant by shooting at him with an M-16
rifle, by committing an assault upon a specialist four (SP4) by pointing at
him with a knife, of wrongfully and willfully discharging a firearm in an
occupied building under circumstances that endangered human life, and of
wrongfully communicating a threat to injure a superior noncommissioned
officer.  He was sentenced to be reduced to the pay grade of E-1,
confinement at hard labor for
4 months, a forfeiture of pay for 4 months, and a BCD.  He was transferred
to the United States Disciplinary Barracks, Fort Leavenworth, Kansas, to
serve his confinement, while awaiting appellate review.

14.  On 9 April 1973, while the applicant was on excess leave, orders were
published at Fort Leavenworth, which indicated that the appellate review
had been completed and the findings and sentence had been affirmed and that
the discharge would be duly executed.

15.  Accordingly, the applicant was discharged pursuant to a duly reviewed
and affirmed court-martial conviction.  He had served 2 years, 8 months,
and 2 days of active service during his current enlistment and 125 days of
lost time due to confinement.  He had served 5 years and 18 days of total
active service and his DD Form 214 issued at the time of his discharge
shows he was awarded the Vietnam Service Medal (VSM), the Expert
Marksmanship Qualification Badge with M-16 rifle bar, two overseas service
bars, and the Republic of Vietnam Campaign Medal with “1960” Device.

16.  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.

17.  A review of the applicant’s records shows that he was awarded the
Combat Infantryman Badge (CIB), the Air Medal (AM), the Army Commendation
Medal (ARCOM), the Bronze Star Medal (BSM), the Sharpshooter Marksmanship
Qualification Badge with M-14 Rifle Bar, and the Army Good Conduct Medal
(AGCM).  Additionally, his unit was awarded the Republic of Vietnam
Gallantry Cross with Palm (RVNGC w/Palm) Unit Citation and he participated
in four campaigns while in Vietnam, which entitles him to wear four bronze
service stars on his VSM.

18.  Title 10, United States Code, section 1552, the authority under which
this Board acts, provides, in pertinent part, that the Board is not
empowered to set aside a conviction.  Rather it is only empowered to change
the severity of the sentence imposed in the court-martial process and then
only if clemency is determined to be appropriate.  Clemency is an act of
mercy, or instance of leniency, to moderate the severity of the punishment
imposed.  Additionally, there have never been any provisions for an
automatic upgrade of such discharges.

DISCUSSION AND CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offenses
charged.  Conviction and discharge were effected in accordance with
applicable law and regulations, and the discharge appropriately
characterizes the misconduct for which the applicant was convicted.

2.  The type of discharge directed and the reasons therefore appear to be
appropriate considering the available facts of the case.

3.  The applicant’s contentions regarding his discharge have been noted.
However, they are not sufficiently mitigating to warrant relief when
compared to the seriousness of his offenses and his overall record of
service.

4.  However, his contention that his DD Form 214 does not reflect all of
his training and decorations and awards appears to have merit.  It appears
that an administrative oversight at the time of his discharge resulted in
the omission of those items.

5.  Accordingly, his records should be corrected to reflect that he was
awarded the CIB, the AM, the ARCOM, the BSM, the AGGC, the RVNGC w/Palm
Unit Citation, the VSM with four bronze service stars, the Sharpshooter
Marksmanship Qualification Badge with M-14 Rifle Bar, and that he attended
Vietnamese Language Training at DLISW for 8 weeks in 1972.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 21 May 1973; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
20 May 1976.  The applicant did not file within the 3-year statute of
limitations; however, based on the available (evidence or argument), it
would be in the interest of justice to excuse failure to timely file in
this case.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

____KW    ____TR _  ___SS __  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief and to excuse failure to timely
file.  As a result, the Board recommends that all Department of the Army
records of the individual concerned be corrected by showing that he
attended the Vietnamese Language Training Course of 8 weeks at the DLISW in
1972 and that he was awarded the CIB, the AM, the ARCOM, the BSM, the AGGC,
the RVNGC w/Palm Unit Citation, the Sharpshooter Marksmanship Qualification
Badge with M-14 Rifle Bar, and the VSM with four bronze service stars (vice
the VSM that is already shown on his DD Form 214).

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
an upgrade of his BCD.





                                  _____ Kenneth Wright_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003203                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061003                                |
|TYPE OF DISCHARGE       |(BCD)                                   |
|DATE OF DISCHARGE       |19730523                                |
|DISCHARGE AUTHORITY     |SPCM . . . . .                          |
|DISCHARGE REASON        |SPCM                                    |
|BOARD DECISION          |(PARTIAL GRANT)                         |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |675/A68.00                              |
|1.144.6800              |                                        |
|2.110.0000              |189/CORR 214                            |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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