RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        9 January 2007
      DOCKET NUMBER:  AR20060008445


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Mr. Jerome Pionk                  |     |Member               |
|     |Mr. Scott Faught                  |     |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
honorable.

2.  The applicant states, in effect, that he was wounded in action in
Vietnam, that he had a severe leg injury, and that after he was discharged
from the hospital he was immediately placed in the 1st Calvary unit doing
full training (running, jumping, crawling, and performing strenuous
activities).  He contends that he was unable to do those duties and that he
never received any physical therapy to help build his strength back.  He
also states that he went absent without leave (AWOL) because he felt it was
the only thing he could do and that he did not realize the consequences of
his decision.  He further states that his service was honorable because he
joined the Army instead of being drafted, that he was told his duties would
be clerical because he had a wife and child, and that as soon as he
completed basic training he was trained as an infantryman and then sent to
Vietnam.

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or
Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 4 December 1970.  The application submitted in this case is
dated 5 June 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 enlisted on 17 July 1969 for a period of 2 years.  He
successfully completed basic combat training and advanced individual
training in military occupational specialty 11B (light weapons
infantryman).  He served in Vietnam from 10 January 1970 until he was
wounded in action on 30 January 1970 and transferred to the United States
on 23 February 1970 for further medical treatment.

4.  The applicant went AWOL on 6 July 1970, was apprehended by civilian
authoriites, and returned to military control on 2 November 1970.  On
5 November 1970, charges were preferred against the applicant for the AWOL
period.  Trial by special court-martial was recommended.

5.  On 5 November 1970, 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.  He indicated in his
request that he understood that he could be discharged under other than
honorable conditions and furnished an Undesirable Discharge Certificate,
that he might be deprived of many or all Army benefits, that he might be
ineligible for many or all benefits administered by the Veterans
Administration and that he might be deprived of his rights and benefits as
a veteran under both Federal and State law.  He also acknowledged that he
might encounter substantial prejudice in civilian life because of an
undesirable discharge.  He elected not to submit a statement in his own
behalf.

6.  The intermediate commander’s recommendation, dated 19 November 1970,
states the applicant’s record of service included two nonjudicial
punishments and six civilian offenses.  No other information is available.

7.  On 24 November 1970, the separation authority approved the applicant’s
request for discharge and directed that he be furnished an undesirable
discharge.

8.  Accordingly, the applicant was discharged with an undesirable discharge
on
4 December 1970 under the provisions of Army Regulation 635-200, chapter
10, for the good of the service.  He had served 11 months and 19 days of
total active service with 149 days of lost time.

9.  Item 26a (Non-Pay Periods Time Lost) on the applicant’s DD Form 214
shows that he had lost time from 10 November 1969 to 13 November 1969, from

14 December 1969 to 7 January 1970, and from 6 July 1970 to 2 November
1970.

10.  On 10 May 1972, the Army Discharge Review Board (ADRB) denied the
applicant’s request for an honorable discharge.

11.  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 at any time after the charges
have been preferred, submit a request for discharge for the good of the
service in lieu of trial by court-martial.  At the time, an undesirable
discharge was normally considered appropriate.

12.  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 (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

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.  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 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 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.  The applicant’s voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial,
was administratively correct and in conformance with applicable
regulations.  He had an opportunity to submit a statement in which he could
have voiced his concerns and he failed to do so.

2.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.

3.  Since the applicant’s record of service included two nonjudicial
punishments and 149 days of lost time, his record of service was not
satisfactory and did not meet the standards of acceptable conduct and
performance of duty for Army personnel.  Therefore, the applicant's record
of service is insufficiently meritorious to warrant a general or honorable
discharge.

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 10 May 1972.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to
this Board expired on 9 May 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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

JA_____  _JP_____  _SF_____  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.




                                  ___James Anderholm____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060008445                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070109                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19701204                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 10                   |
|DISCHARGE REASON        |For the good of the service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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