RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 February 2007
	DOCKET NUMBER:  AR20060009247 


	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. W. W. Osborn, Jr.

Analyst


The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Jerome L. Pionk

Member

Mr. Edward E. Montgomery

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 discharge be upgraded to honorable.

2.  The applicant states, in effect, that he was 20 years old when he was sent to war and he is still affected by it today.  He has never held a real job and he lives each day as if he were still in Vietnam. 

3.  The applicant provides five letters from family members and copies of several pages of service record documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant, a native of Guam, enlisted and entered active duty on
17 March 1967.  He was 18 years and 7 months old and had 11 years of education. The personal history he provided for his enlistment medical examination indicated that he had difficulty in school because he "ran around most of the time" and that he "disliked my teachers and they disliked me."   

2.  He completed basic training, advanced individual training as a wheeled vehicle mechanic, and basic airborne training, all with excellent conduct and efficiency ratings.  He was assigned to a military police company at the Presidio, San Francisco, California where he again received excellent conduct and efficiency ratings.  

3.  The applicant was advanced to pay grade E-3 on 17 October 1967.  On 
8 February 1968, he voluntarily requested duty in Vietnam.  His request was favorably endorsed and he was issued orders.  He arrived in Vietnam on 6 July 1968 and was assigned to an engineer construction battalion.   

4.  A 21 August 1968 hospitalization summary indicates that the applicant had been hospitalized for 2 days as the result of a suicidal gesture.  He was considered mildly depressed and was give Elavil.  This incident resulted in a diagnosis of passive-aggressive personality that had existed prior to entry into the service.  Impairment was considered mild and the applicant was returned to duty.  

5.  On 24 Sep 1968 he was convicted by a special court-martial (SPCM) for chambering a round in his M-14 rifle and pointing it at a sergeant first class.


6.  He was convicted of another SPCM for being absent without leave from 
8 November to 6 December 1968 and was sentenced to confinement for
6 months.
 
7.  He was released from confinement on 29 March 1969 and received NJP on 22 May 1969.   He was then AWOL again from 14 July 1969 until 12 November 1969 when he was apprehended in a nearby village after he was reported to the military police by the local Vietnamese.

8.  The applicant was placed in pre-trial confinement at the Correctional Holding Facility Long Binh, Vietnam.  On 10 January 1970, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, chapter 10 in lieu of trial by court-martial.  He also acknowledged that he understood the consequences of the other than honorable discharge which he might receive.  These included the loss of veteran’s benefits administered by the VA and the various states. 

9.  The chain of command recommended approval.  The discharge authority approved the applicant's request and directed that he be separated with an undesirable discharge.  On 13 March 1970 the applicant was separated with an undesirable discharge under the provisions of chapter 10, Army Regulation 
625-200.

10.  Army Regulation 635-200 (Personnel Separations) 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.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

11.  There is no indication that the applicant applied to the Army Board Discharge Review Board for an upgrade of his discharge during the 15 year statute of limitation. 



12.  The letters of support accompanying the application consist of the following:

	a.  His brother-in-law who writes, "…Joe's been through a lot and I believe that had an impact on his way of thinking and behaving.  I think he saw too much in Vietnam…."

	b.  A sister offers, "…He is a family man.  He respects life and personal property.  He can crack a joke or two.  My brother is a good man.…"

	c.  His stepson writes that the applicant has raised him like a son, and has helped him to learn the values and traditions of the Chamoru [the indigenous people of the Mariana Islands, including Guam] and of the United States.  The applicant has helped him learn honesty, responsibility and respect as well as valuable skills and knowledge.  Still, the family has suffered somewhat because the applicant, although he can interact successfully, prefers to be alone.  He adds, "More than a few years back he quit his regular eight to five working job…because he works much better on his own when he doesn't have to deal with anyone else…."

	d.  The applicant's wife echoes the stepson's comments and closes by saying, "he is a decent person who volunteered to serve his country in Vietnam and did the best he could at the time."    

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.  There is no indication that the request was made under coercion or duress.

2.  The applicant failed to provide convincing evidence to support his implied argument that the psychological stressors of war caused the misconduct that led to the discharge and characterized his service.  The available evidence suggests that any problems in Vietnam were of his own making.      

3.  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.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 13 March 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
12 March 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

_JEA____  __JLP __  __EEM__  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 E. Anderholm____
          CHAIRPERSON



INDEX

CASE ID
AR20060009247
SUFFIX

RECON

DATE BOARDED
20070206
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19700313
DISCHARGE AUTHORITY
AR635-200, ch 10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
111.02
2.

3.

4.

5.

6.