RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 December 2006
      DOCKET NUMBER:  AR20060007452


      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             |
|     |MS. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mrl Dale E. DeBruler              |     |Member               |
|     |Mr. Larry W. 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 his bad conduct discharge (BCD),
characterized as under other than honorable conditions (UOTHC), be
upgraded.

2.  The applicant states, in effect that he received the Purple Heart and
Bronze Star Medal while serving in Vietnam.  He was sent to Womack Army
Hospital, Fort Bragg, North Carolina.  He was treated for wounds and
infection and was assigned to the Medical Holding Company.  He was never
assigned to a company.  He also states that he was sent home to wait for
paperwork which he never received but the Army charged him with AWOL
(absent without leave).   The next thing he knew he was discharged with a
BCD, characterized as UOTHC.

3.  The applicant provides no additional documentation in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 21 March 1973, the date of his discharge.  The application
submitted in this case is dated 15 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's record shows he enlisted in the Regular Army on
20 December 1967, for 2 years, with an established expiration of term of
service (ETS) of 19 December 1969.  The applicant successfully completed
basic combat training at Fort Bragg, North Carolina, and advanced
individual training at Fort Jackson, South Carolina.  On completion of his
advanced training, he was awarded the military occupational specialty
(MOS), 11B, Light Weapons Infantryman.  He was advanced to pay grade E-4 on
1 September 1968.




4.  The applicant served in Vietnam from 27 May to 14 December 1968 with
Company C, 4th Battalion, 9th Infantry.  His DD Form 214 (Armed Forces of
the United States Report of Transfer or Discharge) shows he was awarded the
National Defense Service Medal, the Vietnam Service Medal, the Purple
Heart, and the Combat infantryman Badge.

5.  Item 38 (Record of Assignments), of his DA Form 20 (Enlisted
Qualification Record), shows that he was in a patient status effective
15 December 1968 and was assigned to the Medical Holding Company, Womack
Army Hospital, Fort Bragg, North Carolina.

6.  The applicant records contain a copy of Headquarters, 25th Infantry
Division, General Orders Number 2283, dated 27 February 1969, which shows
that he was awarded the Bronze Star Medal, for meritorious service in
connection with military operations against a hostile force, during the
period May 1968 to November 1968.

7.  The applicant was convicted by a special court-martial on 27 August
1971, of being absent without leave from 15 December 1969 to 2 May 1970 and
from 4 May 1970 to 25 March 1971.  His sentence consisted of a BCD.  The
sentence was approved on the same day.

8.  Item 44 (Time Lost), of his DA Form 20, shows that he was AWOL from 14
to 18 March 1969 (5 days), 2 to 4 June 1969 (3 days), on 27 June 1969 (1
day), from 9 July through 5 August 1969, from 11 August through
29 September 1969 (50 days), and from 10 September 1971 to 27 September
1972 (373 days).  He was placed in confinement from 25 March through 8 July
1971 (106 days).

9.  On 21 March 1973, the applicant was discharged from the Army pursuant
to the sentence of the special court-martial and was issued a BCD.  He had
completed 2 years, 4 months, and 21 days of creditable service and had
93 days of lost time due to AWOL prior to his ETS and 937 days of lost time
due to AWOL and confinement subsequent to his normal ETS.

10.  On 13 February 1974, the Army Discharge Review Board (ADRB) denied the
applicant's petition for an upgrade of his BCD.

11.  The applicant reapplied to the ADRB on 11 January 1978 for an upgrade
of his discharge.  The ADRB determined that the applicant was properly
discharged and denied his request on 4 June 1981.

12.  Army Regulation 635-200, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  Paragraph 11-1(b) of
the regulation provided, in pertinent part, that an enlisted person would
be given a bad conduct discharge pursuant only to an approved sentence of a
general or special court-martial after completion of appellate review and
after affirmation of the sentence imposed.

13.  Army Regulation 635-200, paragraph 3-7b, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier's separation specifically allows such
characterization.

14.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member's service generally has met the standards of
acceptable conduct and performance of duty for Army personnel, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.

15.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the
3-year limit on filing to the Army Board for Correction of Military Records
(ABCMR) should commence on the date of final action by the ADRB.  In
complying with this decision, the ABCMR has adopted the broader policy of
calculating the 3-year time limit from the date of exhaustion in any case
where a lower level administrative remedy is utilized.

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 regulation.

2.  The evidence of record shows that the applicant was convicted by a
special court-martial for numerous offenses and AWOL.  He was discharged
pursuant to sentence of a special court-martial and was issued a BCD.
3.  The applicant has provided no evidence to show that his discharge was
unjust at the time of his offense.  He has not provided evidence sufficient
to mitigate the character of his discharge.

4.  The evidence of record shows that the applicant accumulated a total of
93 days of lost time due to AWOL prior to his ETS and 937 days of lost time
due to AWOL and confinement subsequent to his normal ETS.  An absence of
this duration is serious and there is insufficient evidence to show that
the applicant now deserves an upgrade of his discharge.

5.  The applicant alleges that he was not assigned to a company; however,
the evidence shows that he was assigned to a valid unit while serving in
Vietnam.  He was later placed in a patient status effective 15 December
1968 and assigned to the Medical Holding Company, Womack Army Hospital,
Fort Bragg, North Carolina.  He remained assigned to the Medical Holding
Company until his discharge.

6.  The applicant also alleges that he was sent home to wait for paperwork
which he never received, but the Army charged him with AWOL and the next
thing he knew he was discharged with a BCD, characterized as UOTHC.  There
is no evidence, and the applicant has provided none, to show that he was
sent home on an authorized absence to wait for any documents.  The evidence
clearly shows that he was charged with AWOL and issued a BCD for his AWOL
offenses.

7.  In the processing of this case, it was noted that the applicant was
awarded the BSM, as he reported he received; however, this award was not
included on his DD 214.  It would now be appropriate to add the BSM to his
DD Form 214.

8.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 4 June 1981.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to this Board expired on 3 June 1984.  However, 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.






9.  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 2 of the BOARD
DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___D____  ___LWR_  __RTD__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 for an upgrade of his bad conduct
discharge.

2.  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 award of the Bronze Star Medal.




                                  _____Richard T. Dunbar_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060007452                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061207                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19730321                                |
|DISCHARGE AUTHORITY     |AR  635-200, chap 11                    |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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