RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         6 April 2006
      DOCKET NUMBER:  AR20060003329


      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. Paul M. Smith                 |     |Chairperson          |
|     |Ms. Carmen Duncan                 |     |Member               |
|     |Ms. Brenda K. Koch                |     |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, that his undesirable discharge (UD)
be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he completed 12 months of combat
service in the Republic of Vietnam (RVN), and since his discharge he has
raised two sons on his own, and has worked many long hours to support his
family.  He states that he is writing now because he is terminally ill with
an untreatable form of cancer, which he believes most likely was the result
of his exposure to Agent Orange.  He claims he has no medical insurance,
nor anyway to provide for his family.  He states he did not die in the RVN,
but if he loses his life from the effects of Agent Orange, he in essence is
still giving his life for his country.  He states that when the need arose,
he volunteered to defend his country.  Now in return, he is asking his
country to help his loved ones and him to live out his last days in comfort
and dignity.

3.  The applicant provides the following documents in support of his
application:  Self-Authored Statement; Third-Party Supporting Letter
(Friend); and Third-Party Supporting Letter (Employer).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 17 May 1968.  The application submitted in this case was
received on 5 April 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 served in the Army National Guard
(ARNG) from February through 3 October 1965, and that he enlisted in the
Regular Army and entered active duty on 4 October 1965.  He served in
military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic), and the
highest rank he attained while serving on active duty was private first
class (PFC).

4.  The applicant's Enlisted Qualification Record (DA Form 20) shows that
he served in the RVN from 20 April 1966 through 7 August 1967.  Item 41
(Awards and Decorations) shows that during his active duty tenure, he
earned the National Defense Service Medal (NDSM); Vietnam Service Medal
(VSM), and RVN Campaign Medal with 1960 Device.  The record documents no
acts of valor, or significant achievement.

5.  The applicant's record reveals a disciplinary history that includes his
acceptance of nonjudicial punishment (NJP) under the provisions of Article
15 of the Uniform Code of Military Justice (UCMJ) on the following four
separate occasions for the offenses indicated:  7 July 1965, for disobeying
a lawful order; 10 January 1966, for being absent without leave (AWOL) from
19 December 1965 through 4 January 1966; 15 February 1966, for being AWOL
from 3 through 14 February 1966; and 13 May 1968, for being AWOL from 27
April through 7 May 1968.

6.  On 8 November 1966, while he was serving in the RVN, a summary
court-martial (SCM) found the applicant guilty of unlawfully striking
another individual and for being drunk and disorderly in a public place.
The resultant sentence included a reduction to private/E-1 (PV1) and a
forfeiture of $60.00.

7.  On 2 May 1967, while he was serving in the RVN, a special court-martial
(SPCM) found the applicant guilty of swinging his fist at a commissioned
officer in the execution of his duties.  The resultant sentence included a
reduction to PV1 and a forfeiture of $60.00.

8.  On 6 September 1967, a SPCM found the applicant guilty of being AWOL
from on or about 14 through on or about 17 August 1967.  The resultant
sentence included confinement at hard labor for six months and forfeiture
of $80.00 per month for six months.

9.  The custodian of the applicant's record at the United States
Disciplinary Barracks, Fort Leavenworth, Kansas, completed an extract of
the applicant's disciplinary report.  It shows that on the following dates,
he committed the offenses indicated:  29 December 1967, disobeyed an order
to shave; 9 February 1968, failed to lock up, out of place, and excessive
domicile entries; 10 February 1968, disobeyed the order of custodial
personnel and using profanity towards custodial personnel; 7 March 1968,
disobeyed orders and out of place; and
13 March 1968, failed to report for work.

10.  On 18 April 1968, the unit commander recommended the applicant be
separated under the provisions of Army Regulation 635-212 by reason of
unfitness.  The unit commander cited the applicant's frequent incidents of
a discreditable nature towards military authorities as the basis for taking
the action, and listed the applicant's disciplinary history while in
confinement at the disciplinary barracks, which included 24 infractions
between 28 December 1967 and 8 April 1968.

11.  On 19 April 1968, the applicant underwent a separation physical
examination.  The Report of Medical Examination (SF 88) shows that he
received a 111111 Physical Profile and he was cleared for separation by the
examining physician.  The only condition noted was hemorrhoids, and there
was no indication that he was suffering from any disabling medical
conditions at the time.

12.  On 26 April 1968, the separation authority approved the separation
action on the applicant and directed that he receive an UD.  On 17 May
1968, the applicant was discharged accordingly.  At the time of his
discharge, he had completed a total of 1 year, 11 months, and 26 days of
active military service, and had accrued 173 days of time lost due to AWOL
and confinement.

13.  There is no indication that the applicant applied to the Army
Discharge Review Board for an upgrade of his discharge within that board's
15-year statute of limitations.

14.  The applicant provides a third-party statement from a friend who
indicates that he has had the pleasure of knowing the applicant and his
family for 41 years, during which period he was a police officer and
justice of the peace.  He claims he has always known the applicant to be
honest, hard working and a dedicated family man.  He also provides a third-
party statement from his employer.  This individual states that the
applicant has been one of the best and most dependable employees he has
ever had.

15.  Army Regulation 635-212, in effect at the time, set forth the basic
authority, established the policy, and prescribed the procedures for
separating members for unfitness.  An UD was normally considered
appropriate for members separating under these provisions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his overall record of service, and post
service good conduct support an upgrade of his discharge, and the
supporting documents he submitted were carefully considered.  However,
although his current medical condition is extremely unfortunate, and his
post service conduct has been admirable, these factors are not sufficiently
mitigating to warrant granting the requested relief.

2.  The evidence confirms the applicant had an extensive disciplinary
history throughout the time he served, which included the time he served in
the RVN.  This included three court-martial convictions and acceptance of
NJP on at least four separate occasions.  Further, his disciplinary record
while in confinement was equally bad, and resulted in his UD.

3.  The evidence of record also confirms that the applicant's separation
processing was accomplished in accordance with the applicable regulation.
All requirements of law and regulation were met, and his rights were fully
protected throughout the separation process.  Finally, given the
applicant's record of poor duty performance and misconduct, his discharge
accurately reflects his overall record of service.  Therefore, it would not
be appropriate or fair to others who faced similar circumstances to upgrade
his discharge at this late date.

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 17 May 1968, the date of his
separation.  Therefore, the time for him to file a request for correction
of any error or injustice expired on 16 May 1971.  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.

6.  The applicant is advised that if he believes his current illness is
related to Agent Orange exposure, he should pursue his claim through the
Department of Veterans Affairs (VA), the agency responsible for addressing
those claims.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___PMS _  __CD  __  ___BKK__  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.




                                  _____Paul M. Smith_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003329                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/04/06                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1968/05/17                              |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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