RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            19 December 2006
      DOCKET NUMBER:   AR20060006723


      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:

|     |Ms. Kathleen Newman               |     |Chairperson          |
|     |Mr. Paul Smith                    |     |Member               |
|     |Mr. John Moeller                  |     |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 at
least a general discharge.

2.  The applicant states, in effect, that his discharge should have been
under honorable conditions because he had a prior period of honorable
service in which he served in Vietnam and that after returning from
Vietnam, he found that he could not function in a stateside environment.
He goes on to state that he suffers from Post-Traumatic Stress Disorder,
which he got in Vietnam.  He also states that he had a good middle-class
upbringing and the Army and his service in Vietnam changed him into a
different person.

3.  The applicant provides a 4-page letter explaining his position, two
letters of support from family members and one letter of support from a
former supervisor.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 27 January 1972.  The application submitted in this case is
dated 2 May 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 was born on 19 January 1948 and was inducted in Detroit,
Michigan on 25 March 1968.  He completed his basic training at Fort Leonard
Wood, Missouri was transferred to Fort Knox, Kentucky to undergo his
advanced individual training (AIT) as a cook’s apprentice.

4.  On 29 July 1968, nonjudicial punishment (NJP) was imposed against him
for causing a breach of peace and for impersonating an officer (second
lieutenant).  His punishment consisted of a forfeiture of pay.

5.  Upon completion of his AIT he was transferred to Bamberg, Germany on
10 December 1968, for duty as a cook’s helper.  He was advanced to the pay
grade of E-3 on 3 January 1969.
6.  On 17 April 1969, he was honorably discharged for the purpose of
immediate reenlistment.  On 18 April 1969, he reenlisted in the Regular
Army for a period of 3 years and assignment to Vietnam.  He departed
Germany on 29 April 1969 and arrived in Vietnam on 14 June 1969.

7.  He was assigned to Company D, 1st Battalion, 61st Infantry Regiment for
duty as a first cook.  He was advanced to the pay grade of E-4 on 6 August
1969.  He departed Vietnam on 13 June 1970 and was transferred to Fort
Leonard Wood, Missouri.  He reported on 20 July 1970 and was assigned as a
cook in a basic combat training battalion.

8.  On 16 December 1970, NJP was imposed against him for being absent
without leave (AWOL) from 11 December to 15 December 1970.  His punishment
consisted of a reduction to the pay grade of E-2.

9.  On 16 February 1971, NJP was imposed against him for being AWOL from
8 January to 14 January and 16 January to 10 February 1971.  His punishment
consisted of a reduction to the pay grade of E-1 and a forfeiture of pay
(both suspended for 60 days).

10.  The applicant again went AWOL from 22 October to 26 October, from
29 October to 6 December 1971 and from 9 December 1971 to 11 January 1972,
when he was returned to military control and charges were preferred against
him for the AWOL offenses.

11. 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.

12.  The applicant’s commander recommended approval of the applicant’s
request and indicated that the applicant had stated that he would continue
to go AWOL until he could obtain a discharge.

13.  The appropriate authority approved the applicant’s request and
directed that he be furnished an Undesirable Discharge Certificate.
14.  Accordingly, the applicant was discharged under other than honorable
conditions on 27 January 1972, under the provisions of Army Regulation
635-200, chapter 10, in lieu of trial by court-martial.  He had served 3
years, 6 months and 14 days of total active service and had 112 days of
lost time due to AWOL.

15.  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.

16.  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.  Although an honorable
or general discharge may be issued, a discharge characterized as under
other than honorable conditions is normally considered appropriate.  There
were not then, or now, 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.

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

3.  The applicant’s contentions and supporting documents have been noted;
however, they are not sufficiently mitigating to warrant relief when
compared to his overall record of service and his repeated misconduct.  His
service during the period in question simply does not rise to the level of
honorable service.

4.  Additionally, 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 in hopes of avoiding a punitive
discharge and having a felony conviction on his records.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 27 January 1972; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 26 January 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

__KN ___  __PS  ___  __JM ___  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.


                                  ____Kathleen Newman_____
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20060006723                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061219                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1972/01/27                              |
|DISCHARGE AUTHORITY     |AR635-200/ch10 . . . . .                |
|DISCHARGE REASON        |Gd of svc                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |689/a70.00                              |
|1.144.7000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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