RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            07 December 2006
      DOCKET NUMBER:   AR20060007185


      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. Richard Dunbar                |     |Chairperson          |
|     |Mr. Dale DeBruler                 |     |Member               |
|     |Mr. Larry Racster                 |     |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 he be granted amnesty and that his
undesirable discharge be upgraded to a more favorable discharge.

2.  The applicant states, in effect, that he should have been granted
amnesty and given a better discharge for his service in Vietnam.

3.  The applicant provides a letter of support from his ex-wife.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 18 January 1970.  The application submitted in this case is
dated 5 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 was inducted in Montgomery, Alabama on 6 September 1968.
He completed his basic combat training at Fort Benning, Georgia and his
advanced individual training (AIT) at Fort McClellan, Alabama.

4.  Upon completion of his AIT he was transferred to Vietnam on 6 February
1969.  He was assigned to Company A, 2nd Battalion, 5th Cavalry Regiment
for duty as a rifleman.  He was advanced to the pay grade of E-3 on 9
February 1969.

5.  On 22 March 1969, he was reassigned to Company E, 1st Battalion, 12th
Cavalry Regiment and in August 1969, he was again reassigned to Company B,
1st Battalion, 12th Cavalry Regiment.

6.  On 7 November 1969, he was convicted by a special court-martial of
being absent without leave (AWOL) from 19 August to 6 October 1969, of
disobeying a lawful order to get a pack and weapon, to get on a helicopter,
and to join his unit
in the field, and of breaking restriction.  He was sentenced to confinement
at hard labor for 5 months, a forfeiture of pay, and reduction to the pay
grade of E-1.

7.  On 10 November 1969, the company executive officer informed him that
the confinement portion of his court-martial sentence had been suspended by
the convening authority for a period of 5 months, provided that he did not
get into any further trouble.  The applicant was ordered to get his gear
together and go over to the Chinook pad for the next flight to the Fire
Support Base where his unit was located.  The applicant refused to do as he
was ordered.

8.  On 11 November 1969, charges were preferred against the applicant for
disobeying a lawful order from a superior commissioned officer to return to
his unit in the field.

9.  On 27 November 1969, after consulting with 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 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 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 declined to submit a statement in his own
behalf.

10.  The chain of command indicated that the applicant had been
rehabilitatively transferred from company to company in order to break up a
group of troublemakers after he was almost court-martialed for disobeying
an order to cross a river.  His first sergeant opined that the applicant
was uncooperative and lazy and he suspected the applicant of being a
frequent user of marijuana.  Further rehabilitation was considered unlikely
at best.

11.  The appropriate authority (a major general) approved his request on
3 January 1970 and directed that he be furnished an Undesirable Discharge
Certificate.

12.  Accordingly, he was returned to Oakland Army Base, California where he
was discharged under other than honorable conditions on 18 January 1970,
under the provisions of Army Regulation 635-200, chapter 10, in lieu of
trial by court-martial.  He had served 1 year, 2 months and 24 days of
total active service and had 49 days of lost time due to AWOL.  His records
show that he was awarded the Combat Infantryman Badge, the Purple Heart,
the Air Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign
Medal, and the National Defense Service Medal.

13.  There is also 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.

14.  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 (felony
conviction) may at any time after charges have been preferred, submit a
voluntary 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 have been briefed and
understand the consequences of such a request as well as the discharge they
might receive.  An undesirable discharge, under other than honorable
conditions, was at that time and is still normally considered appropriate.

15.  Presidential Proclamation 4313, issued on 16 September 1974, affected
three groups of individuals.  These groups were fugitives from justice who
were draft evaders; members of the Armed Forces who were in an unauthorized
absence status; and prior members of the Armed Forces who had been
discharged with a punitive discharge for violations of Articles 85, 86, or
87 of the Uniform Code of Military Justice.  The last group could apply to
a Presidential Clemency Board which was made up of individuals appointed by
the President (members were civilians, retired military and members of the
Reserve components) who would make a determination regarding the
performance of alternate service.  That board was authorized to award a
Clemency Discharge without the performance of alternate service (excusal
from alternate service).  The dates of eligibility for consideration under
this proclamation for those already discharged from the military service
were 4 August 1964 to 28 March 1973, inclusive.  Alternate service was to
be performed under the supervision of the Selective Service System.  When
the period of alternate service was completed satisfactorily, the Selective
Service System notified the individual’s former military service.  The
military services issued the actual Clemency Discharges.  The Clemency
Discharge is a neutral discharge, issued neither under “honorable
conditions” nor under “other than honorable conditions.”  It is to be
considered as ranking between an undesirable discharge and a general
discharge.  A Clemency Discharge does not affect the underlying discharge
and does not entitle the individual to any benefits administered by the
Department of Veterans
Affairs (formerly Veterans Administration).  While there is no change in
benefit status per se, a recipient may apply to the Department of Veterans
Affairs for benefits.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in
accordance with applicable regulations with no procedural errors that would
tend to jeopardize his rights.

2.  Accordingly, the type of discharge and the reasons therefore were
appropriate considering the facts of the case.

3.  The applicant's record of service shows a repeated pattern of
disobeying orders from his superiors, despite numerous attempts to
rehabilitate him.  Although he did serve in combat and received several
awards for his service, his persistent disobedience of orders and
misconduct do not rise to the level of a discharge under honorable
conditions.

4.  The applicant requested a discharge in lieu of trial by court-martial
and offered no mitigating circumstances for his willful misconduct either
then or now.  Accordingly, there appears to be no basis to upgrade his
discharge.

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 18 January 1970; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 17 January 1973.  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

__RD ___  ___DD __  ___LR __  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.




                                  _____ Richard Dunbar______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060007185                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061207                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1970/01/18                              |
|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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