RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 February 2007
	DOCKET NUMBER:  AR20060011664 


	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. Gerard W. Schwartz

Acting Director

Mr. W. W. Osborn, Jr.

Analyst

The following members, a quorum, were present:


Mr. Ted S. Kanamine

Chairperson

Mr. Larry C. Bergquist

Member

Ms. LaVerne M. Douglas

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 a general discharge under honorable conditions. 

2.  The applicant states that he was absent without leave (AWOL) because his wife miscarried and he felt he needed to be with her.  Then, he became really upset when he saw two friends get killed in Vietnam and he want AWOL again.  He received the Purple Heart for a head wound.  He was afraid that he was going to die.  He has a steel plate in his head and does not handle stress well.

3.  The applicant provides no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 24 December 1968, the date of the discharge.  The application submitted in this case is dated 8 August 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 in the Regular Army on 21 November 1967.  During advanced individual training he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for disrespect to a noncommissioned officer.  Additionally, he was AWOL on 22 and 23 January 1968 but the disposition of these offenses is not contained in the available records. 

4.  He completed training as a light weapons infantryman and was ordered to Vietnam.  On 21 May 1968, he was assigned to A Company, 2nd Battalion, 39th Infantry, 9th Infantry Division where he was advanced to private first class (pay grade E3).  

5.  The applicant was wounded on 3 June 1968 and awarded the Purple Heart.  He was awarded the Combat Infantryman Badge on 22 July 1968.
6.  On 26 July 1968 he was convicted by a special court-martial of absence from his place of duty, missing movement of the company, and willful disobedience of a commissioned officer to go on a combat mission.  The approved sentence included reduction to pay grade E1, forfeiture of $74.00 per month for 6 months, and confinement for 6 months (suspended).  The suspension was vacated on 8 August 1968.   

7.  The applicant was AWOL from 8 October to 20 October 1968 and subsequently convicted by another SPCM for that offense and for disrespect to a noncommissioned officer.    

8.  He returned to the United States on 20 December 1968 and was separated on 24 December 1968 with an undesirable discharge due to frequent incidents of a discreditable nature under the provisions of Army Regulation 635-212.  He had 11 months and 21 days of creditable service and 43 days lost time.  

9.  The separation processing documents are not contained in the available records.  There is no available evidence relating to the applicant's contentions about a miscarriage, the death of two friends, or a serious head injury. 

10.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

11.  There is no indication the applicant applied to the Army Discharge Review Board.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of any evidence of record, the applicant's assertions of personal physical and emotional trauma fail to mitigate his repeated misconduct which outweighs the positive aspects of his unfinished tour of duty in Vietnam.   

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

3.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  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.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 24 December 1968, the date of the discharge; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 23 December 1971.  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

_LMD___  ___LCB__  __TSK __  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.



 
__     Ted S. Kanamine_____
          CHAIRPERSON




INDEX

CASE ID
AR20060011664
SUFFIX

RECON

DATE BOARDED
20070227
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
108.00
2.

3.

4.

5.

6.