RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 February 2006
      DOCKET NUMBER:  AR20050012428


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Hubert O. Fry                 |     |Chairperson          |
|     |Ms. Carol A. Kornhoff             |     |Member               |
|     |Mr. John M. Moeller               |     |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, in effect, an upgrade of his undesirable
discharge (UD).

2.  The applicant states, in effect that his discharge was based on his
altercation with a Vietnamese civilian.  He states that we were at war with
the Vietnamese and his confrontation with this civilian was inevitable.  He
further states that it is important for him a veteran who went to war to
receive medical assistance and access to Department of Veterans Affairs
(VA) medical facilities.

3.  The applicant provides his Separation Document (DD Form 214) and
Birth Certificate in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 17 December 1970.  The application submitted in this case
is dated 17 June 2005.

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 that he enlisted in the Regular Army and
entered active duty on 10 June 1969.  He was awarded and served in military
occupational specialty (MOS) 76P (Supply Clerk), and the highest rank he
attained while serving on active duty was private first class (PFC).

4.  The applicant’s record shows he served in the Republic of Vietnam (RVN)
from 13 May through 13 December 1970, and he earned the National Defense
Service Medal and Vietnam Service Medal during his tenure on active duty.

5.  The applicant’s record shows that he accepted nonjudicial punishment
(NJP) under the provisions of Article 15 of the Uniform Code of Military
Justice (UCMJ) on the following eight separate dates for the offense(s)
indicated:  21 December 1968, for disobeying a lawful order; 12 January
1970, for disobeying a lawful order; 11 July 1970, for sleeping on guard
duty; 18 July 1970, for disobeying a lawful order and being absent from his
place of duty; 2 August 1970, for drunk and disorderly and breaking
restriction; 20 August 1970, for disrespect to a commissioned officer and
drunk and disorderly; 1 September 1970, for being absent from his place of
duty; and 16 September 1970, for drunk on duty and absent from his place of
duty.

6.  On 25 October 1970, court-martial charges were preferred against the
applicant for violating Articles 134 of the UCMJ by using a habit forming
drug; for violating Article 89 by being disrespectful to commissioned
officer; and for violating Article 90 by disobeying a lawful order.

7.  On 1 December 1970, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
effects of an UD and of the rights available to him.  Subsequent to
receiving this legal counsel, the applicant voluntarily requested discharge
for the good of the service, in lieu of trial by court-martial.

8.  In his request for discharge, the applicant acknowledged that he
understood that if his discharge request was approved, he could be deprived
of many or all Army benefits, that he could be ineligible for many or all
benefits administered by the Department of Veterans Affairs (VA), and that
he could be deprived of his rights and benefits as a veteran under both
Federal and State law.  He further indicated that he understood that he
could encounter substantial prejudice in civilian life by reason of an UD.
In a handwritten statement the applicant provided with the discharge
request, he also stated that if he were sent back to duty, he did not think
he would stay.

9.  On 11 December 1970, the separation authority approved the applicant’s
request for discharge, and directed the applicant be reduced to the lowest
enlisted grade and that he receive an UD.  On 17 December 1970, the
applicant was discharged accordingly.  The DD Form 214 he was issued shows
he completed a total of 1 year, 6 months, and 1 day of creditable active
military service, and that he accrued 7 days of time lost due to AWOL.

10.  On 5 March 1973, the Army Discharge Review Board (ADRB), after careful
consideration of the applicant’s case, determined his discharge was proper
and equitable, and it voted to deny his request for an upgrade of his
discharge.
11.  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 Board 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.

12.  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.  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 UD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded
because he served during a time of war and his altercation with a
Vietnamese civilian was inevitable, and the supporting documents he
submitted, were carefully considered.  However, there is insufficient
evidence to support his claim.

2.  The evidence of record confirms the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, he voluntarily requested
discharge in lieu of trial by court-martial.  All requirements of law and
regulation were met and that the rights of the applicant were fully
protected throughout the separation process. Further, his discharge
accurately reflects his overall record of undistinguished service.

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 exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 5 March 1973.  As
a result, the time for him to file a request for correction of any error or
injustice to this Board expired on 4 March 1976.  However, he failed to
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

___HOF _  __CA  K_  ___JMM _  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.




                                  _____Hubert O. Fry________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050012428                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/02/28                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1970/12/17                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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