RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  20 November 2003
	DOCKET NUMBER:  AR2003084919

	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. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Ms. Joann Langston		Chairperson	
	Ms. Linda D. Simmons		Member	
	Mr. Robert Duecaster		Member	

	The applicant and counsel if any, did not appear before the Board.

	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 bad conduct discharge be upgraded to honorable. 

2.  The applicant states that he is a Vietnam Veteran who made a mistake over 35 years ago.  Upon his return from Vietnam, he received an honorable discharge prior to his reenlistment.  He served his country before he received his second discharge; however, he now feels that it does not count for anything.  He is unable to understand how his first discharge could be overlooked and is not proud of his second discharge.  He is now hopeful that his second discharge can be upgraded to honorable.  He has filed a claim for Agent Orange and is unable to change the mistakes that he has made.  He now feels that 35 years is a long time to hold a grudge.  During his incarceration, he obtained his General Education Development (GED) that is not shown on his DD 214 and he does not understand why.  He now feels that his service in Vietnam was for nothing and that his last recourse was to write the President for a pardon.   

3.  The applicant provides no documentation in support of his application.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of injustice that occurred on 31 March 1969, the date of his discharge.  The application submitted in this case is dated 30 December 2002.  

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 limitation 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 military records show he was inducted on 1 July 1965, as a general supply specialist, with a 9th grade education.  He served in Vietnam from 25 January 1966 to 24 January 1967.  He continued to serve until he was honorably discharged on 2 April 1967, in order to reenlist.  He reenlisted on 3 April 1967. 

4.  He was convicted by two special courts-martial and one general court-martial of being AWOL from 18 May to 8 August 1967 (83 days), from 2 November 1967 to 19 January 1968 (78 days), and from 18 April to 20 October 1968 (185 days).  His sentences consisted of forfeitures of pay, confinement at hard labor, a reduction to the pay grade of E-1, and a bad conduct discharge.

5.  On 24 January 1969, the Court of Military Review affirmed the findings and sentence of the general court-martial conviction as approved by the convening authority.

6.  On 31 March 1969, the applicant was discharged from the Army pursuant to the sentence of a general court-martial and was issued a Bad Conduct Discharge Certificate.  He had served 2 years, 1 month, and 11 days of creditable service and had 599 days of lost time due to AWOL and confinement.

7.  Item 25 (Education and Training Completed) of his DD Form 214, dated 31 March 1969 shows the entry "Civilian Education:  9 years."  His DD Form 214, dated 2 April 1967, shows the entry "9 years - General Education" in item 30 (Remarks).

8.  The applicant applied to the Army Discharge Review Board (ADRB) on 
29 December 2002.  However, his case was ineligible for review by the ADRB due to his conviction by a general court-martial.  This Board accepted his         DD Form 149, dated 30 December 2002. 

9.  Army Regulation 635-200, in effect, at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 11-1(b) of the regulation provided, in pertinent part, that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  

DISCUSSION AND CONCLUSIONS:

1.  Careful consideration has been given to the applicant's contentions.  The Board is fully aware of his Vietnam service, honorable discharge for his first enlistment, and his second discharge.  It is noted that it has been approximately 35 years since his bad conduct discharge and that he requests that his bad conduct discharge be upgraded to honorable.  However, his 599 days of lost time due to AWOL and confinement are too severe to warrant relief.

2.  The applicant has provided no evidence to show that his discharge was unjust.  He also has not provided any evidence sufficient to mitigate the character of his discharge.

3.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulation.

4.  If the applicant desires to pursue a pardon, pardon issues are handled by the Office of the Pardon Attorney, Department of Justice.  He should contact the Pardon Attorney at the following address:  Office of the Pardon Attorney,           4th Floor, 500 First Street, NW, Department of Justice, Washington, DC  20530-0001 for further information.

5.  The evidence of record shows that the applicant was not a high school graduate prior to his enlistment nor was he a graduate at the time of his separation from active duty.  There is no evidence of record, and the applicant has failed to provide evidence, to show that he obtained his GED while incarcerated.  Therefore, he is not entitled to correction of his DD Forms 214 to show that he completed his GED.  

6.  Records show the applicant should have discovered the error or injustice now under consideration on 31 March 1969; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 31 March 1972. However, 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.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___JL____  ___LS_____  __RD____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not 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.  

		___Joann Langston____
		        CHAIRPERSON

INDEX

CASE ID	AR2003084919	
SUFFIX		
RECON		
DATE BOARDED	20031120	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19690331	
DISCHARGE AUTHORITY	AR  635-200 paragraph 11-1b	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	360	
2.		
3.		
4.		
5.		
6.