RECORD OF PROCEEDINGS


      IN THE CASE OF:



      BOARD DATE:        17 October 2006
      DOCKET NUMBER:  AR20060004274


      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. W. W. Osborn, Jr.             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. Peter B. Fisher               |     |Member               |
|     |Mr. Rowland  C. Heflin            |     |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 discharge be upgraded.

2.  The applicant states, in effect, that he always did more than was
expected of him.  He did his job well in Korea and in Vietnam where he ran
unescorted convoys in order to get supplies to the troops.  He was hit by a
bus and badly injured but, because of the discharge, he does not get
treatment from the Department of Veterans Affairs (VA) for those injuries
or for a really bad bite from a snake or an insect.  After he returned to
the United States, he and his family were intentionally maligned by
officers who pretended that they thought he could not hear them.  When he
went to his commanding officer, the captain further maligned and degraded
him.  He believes that if he could have stayed overseas he would have been
able to stay in the Army until he retired.  He complains because his record
shows he was absent without leave (AWOL) four or five times but he was
never AWOL.

3.  The applicant provides only his own statement.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel provides no statement, evidence or documentation beyond that
submitted with the application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 23 January 1975.  The application submitted in this case is
dated 13 March 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; a Vietnam veteran as a heavy truck driver with 3 years,
4 months, and 1 day of prior active duty and 1 year, 3 months, and 11 days
of inactive duty.  He enlisted in the Regular Army on 6 April 1970 in pay
grade E-5.
4.  He was stationed in Korea where he reenlisted on 5 January 1971 for
duty in Vietnam.  He was awarded the Army Commendation Medal for
meritorious service from January 1971 to January 1972.  On 8 March 1972, he
was assigned to Fort Rucker, Alabama where his troubles began.

5.  On 14 August 1972, the applicant received nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for a 4-day
period of AWOL.  The punishment consisted of reduction to pay grade E-4.
The applicant’s appeal was denied.

6.  Notwithstanding the NJP, he was awarded the Good Conduct Medal (2nd
Award) for the period 24 April 1970 to 23 April 1973.

7.  The applicant received a second NJP, on 26 September 1973, for being
AWOL for part of 1 day.  The punishment consisted of a forfeiture of $87.00
pay per month for 1 month and reduction to pay grade E-3, both suspended.
On 5 October 1973 the suspension was vacated due to misconduct.

8.  On 5 April 1974, the Federal Bureau of Investigation reported that the
applicant had been convicted of driving while intoxicated on 16 January
1974 and sentenced to confinement for 30 days.  He was then convicted of
escape on 15 March 1974 and sentenced to another 30 days confinement. The
Enlisted Record and Evaluation Center, Indianapolis, Indiana queried his
command about action to separate him for civilian conviction, but
apparently no action was taken because he was subsequently AWOL.  He was
then dropped from the rolls for desertion.

9.  On 6 May 1974, at Fort Rucker, Alabama, UCMJ charges were preferred
against the applicant for being AWOL from 6 to 10 December 1973, 16 to 22
January 1974, 25 January to 12 February 1974, on 15 March 1974, and from
5 May 1974 to an unspecified date.  The applicant was apprehended in Texas
and returned to military control at Fort Sill, Oklahoma on 31 December
1974.

10.  Special Orders Number 21, Headquarters U.S. Army Field Artillery
Center and Fort Sill, Oklahoma ordered the applicant separated with an
undesirable discharge.   The documentation associated with the applicant’s
administrative separation is not contained in the available records.

11.  The applicant indicated, on 8 January 1975, that he had experienced no
changes to his medical condition since his separation medical examination.


12.  The applicant was discharged under the provisions of Army Regulation
635-200, chapter 10 on 23 January 1975.  He had 3 years, 3 months, and 29
days of creditable active service during this enlistment; 3 years, 4
months, and
1 day of prior active duty service and 263 days of lost time.

13.    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
submit a request for discharge for the good of the service in lieu of trial
by court-martial.  The request may be submitted at any time after charges
have been preferred and must include the individual's admission of guilt. 
Although an honorable or general discharge is authorized, 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.

14.  There is no indication that the applicant ever applied to the Army
Discharge Review Board.

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.  Notwithstanding the applicants assertion that he was never AWOL and
that certain officers were out to get him, there is sufficient evidence of
record to fully support the undesirable 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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 January 1975; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 22 January 1978.  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

__PBF__  __RCH __  __JTM___  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 T. Meixell________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004274                           |
|SUFFIX                  |                                        |
|RECON                   |20061017                                |
|DATE BOARDED            |                                        |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19750105                                |
|DISCHARGE AUTHORITY     |AR 635-200, ch 10. . . . .              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1. A70.00|                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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