RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            14 December 2996
      DOCKET NUMBER:   AR20060006553


      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. John Slone                    |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Mr. Michael Flynn                 |     |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 report of separation (DD Form 214) be
corrected to reflect that his discharge was under honorable conditions and
that he was awarded the Purple Heart.

2.  The applicant states that the character of service on his DD Form 214
dated 5 April 1976 incorrectly reflects that his service was under other
than honorable conditions when it was actually under honorable conditions.
He also states that he was awarded the Purple Heart for wounds received in
Vietnam and that award was also omitted from his DD Form 214 at the time of
his discharge.

3.  The applicant provides copies of his reports of separation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 5 April 1976.  The application submitted in this case is dated
28 April 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’s records, though somewhat incomplete, show that he was
born on 28 March 1944 and enlisted on 11 May 1966 for a period of 3 years.
He was honorably discharged on 12 April 1967 for the purpose of immediate
reenlistment.  He reenlisted on 13 April 1967 and was transferred to
Vietnam in June 1967.  He was promoted to the pay grade of E-5 on 22
December 1967.

4.  He was honorably discharged at Fort Meade, Maryland on 8 January 1970
for the purpose of immediate reenlistment.  He reenlisted on 9 January 1970
for a period of 6 years and on 18 November 1970, he was again discharged
for the purpose of immediate reenlistment.  He reenlisted again on 19
November 1970 for a period of 6 years and assignment to Vietnam.

5.  The applicant was transferred back to Vietnam and it appears that he
fell and hurt his right ankle.  It also appears that he was transferred
back to Oakland Army Base, California for treatment and he remained there
for 90 days before being returned back to Vietnam.  He was subsequently
transferred to Fort Huachuca, Arizona for duty as a Ground Radar
Surveillance instructor.  It also appears that his records were missing and
had to be reconstructed at Fort Huachuca.

6.  On 5 March 1973, nonjudicial punishment was imposed against him for
being absent from his place of duty (fire guard formation).  His punishment
consisted of extra duty for 14 days.

7.  On 1 May 1973, he went absent without leave (AWOL) and remained absent
in desertion until he was returned to military control at Fort Leonard
Wood, Missouri, on 15 March 1976, where charges were preferred against him
on 19 March 1976.

8.  On 22 March 1976, after consulting with defense counsel, the applicant
submitted a request for discharge for the good of the service, under the
provisions of Army Regulation 635-200, chapter 10, in lieu of trial by
       court-martial.  In his request he indicated that he understood the
charges that had been preferred against him, that he was making the request
of his own free will, without coercion from anyone and that he was aware of
the implications attached to his request.  He also admitted that he was
guilty of the charges against him or of lesser included offenses which
authorized the imposition of a bad conduct or dishonorable discharge.  He
acknowledged that he understood that he could receive a discharge under
other than honorable conditions and that he might be deprived of all
benefits as a result of such a discharge.  He also elected to not to submit
a statement in his own behalf

9.  The appropriate authority (a brigadier general) approved his request on
1 April 1976 and directed that he be furnished an Undesirable Discharge
Certificate.

10.  Accordingly, he was discharged under other than honorable conditions
on 5 April 1976, under the provisions of Army Regulation 635-200, chapter
10, in lieu of trial by court-martial.  He had served 2 years, 6 months and
3 days of active service during his current enlistment for a total of 7
years and 10 days of total active service and he had 1049 days of lost time
due to AWOL.

11.  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.

12.  His DD Form 214 issued at the time of his discharge contains the entry
“None” in item 26, under decorations and awards.  However, a review of the
available records shows that he was awarded the Army Commendation Medal
(ARCOM), the National Defense Service Medal (NDSM) the Republic of Vietnam
Campaign Medal (RVNCM), the Vietnam Service Medal (VSM) with one silver and
one bronze service star, three overseas service bars and the Republic of
Vietnam Gallantry Cross with Palm (RVNGC w/Palm) Unit Citation.

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 admit
guilt to the charges against them or of a lesser included offense which
authorizes the imposition of a bad conduct or dishonorable discharge and
they must indicate that they have been briefed and understand the
consequences of such a request as well as the discharge they might receive.
 A discharge under other than honorable conditions was then and still is
normally considered appropriate.

14.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent
part, that the Purple Heart is awarded for a wound sustained while in
action against an enemy or as a result of hostile action.  Substantiating
evidence must be provided to verify that the wound was the result of
hostile action, the wound must have required treatment, and the medical
treatment must have been made a matter of official record.

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.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence or offer
mitigating circumstances before a trial by court-martial, he voluntarily
requested a discharge for the good of the service in hopes of avoiding a
punitive discharge and having a felony conviction on his records.  In doing
so he admitted guilt to the charges against him.

4.  The applicant's contentions have been noted; however, they are not
sufficiently mitigating to warrant relief when compared to his overall
record of service and the lack of mitigating circumstances to explain his
extensive absence.  His service during the period in question simply does
not rise to the level of a discharge under honorable conditions.

5.  The applicant’s contention that he was awarded the Purple Heart has
also been noted.  However, he has failed to show through the evidence
submitted or the evidence of record that he was awarded the Purple Heart,
that he was wounded or injured as a result of enemy action in Vietnam, that
the injury was treated and that the treatment was made a matter of record.
Accordingly, there appears to be no basis to add that award to his records
at this time.

6.  However, the evidence of record does show that he was awarded the
ARCOM, the NDSM, the RVNCM, the VSM with one silver and one bronze service
star, three overseas service bars and the RVNGC w/Palm Unit Citation.
Accordingly, he is entitled to have those awards added to his DD Form 214
dated 5 April 1976.

7.  Evidence shows that the applicant’s records contain administrative
error which does not require action by the Board.  Therefore,
administrative correction of the applicant’s records will be accomplished
by the Case Management Support Division (CMSD), St. Louis, Missouri, as
outlined by the Board in paragraph 3 of the BOARD
DETERMINATION/RECOMMENDATION section below.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 5 April 1976; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 4 April 1979.  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

__JS____  ___LE __  ___ MF__  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.

3.  The Board determined that administrative error in the records of the
individual should be corrected.  Therefore, the Board requests that the
CMSD-St. Louis administratively correct the records of the individual
concerned to show on his DD Form 214 dated 5 April 1976, that he was
awarded the ARCOM, the NDSM, the RVNCM, the VSM with one silver and one
bronze service star, three overseas service bars and the RVNGC w/Palm Unit
Citation.





                                  ______John Slone______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060006553                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1976/04/05                              |
|DISCHARGE AUTHORITY     |AR635-200/CH10 . . . . .                |
|DISCHARGE REASON        |GD OF SVC                               |
|BOARD DECISION          |(DENY W/NOTE)                           |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |689/A70.00                              |
|1.144.7000              |                                        |
|2.107.0015              |61/PH                                   |
|3.110.0000              |189/CORR 214                            |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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