RECORD OF PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:            5 February 2004                  
	DOCKET NUMBER:   AR2003088855

	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. Jeanie M. Biggs		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Karen A. Heinz`		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, in effect, that his general discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he is an ordained minister and free from the childish ways of the Vietnam Era.

3.  The applicant does not provide any documentation in support of his request.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of injustice which occurred on 
25 August 1971.  The application submitted in this case is dated 8 April 2003.  

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.  On 2 October 1968, the applicant enlisted in the Regular Army for a period of three years.  He was awarded the military occupational specialty (MOS) 71B (clerk typist).  He was assigned to Vietnam from 26 April 1969 to 4 April 1970 and advanced to the pay grade of E-3.

4.  The Applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), shows that he is entitled to the following awards: the National Defense Medal; the Vietnam Service Medal, and the Vietnam Campaign Medal with 60 Device.

5.  On 24 January 1969, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully engaging in a fistfight.

6.  On 24 April 1969, the applicant accepted NJP for being AWOL from 9 April 1969 to 23 April 1969.  

7.  On 11 December 1969, the applicant accepted NJP for being AWOL from 
1 December 1969 to 5 December 1969.  

8.  On 5 March 1970, the applicant was found guilty by a special court-martial of committing an assault on a private by threatening him with a dangerous weapon (knife).  He was sentenced to confinement at hard labor for 4 months (suspended for four months), forfeiture of $61.00 for 4 months and reduction to pay grade 
E-1.  Sentence was approved on 25 March 1970.

9.  On 29 May 1969, the applicant was convicted by a summary court-martial of being disrespectful in language toward his superior non-commission officer, disorderly conduct, and wrongfully having in his possession a .45 caliber pistol.  He was sentenced to be confined at hard labor for 30 days (suspended for six months), to forfeit $73.00 per month for one month and reduction to pay grade 
E-1.

10.  On 26 May 1971, the applicant requested release from active duty for the purpose of attending college.

11.  On 1 June 1971, the request for release was approved.

12.  On 25 August 1971, he was discharged in pay grade E-3, under the provision of Army Regulation 635-200, Chapter 5.  He had 2 years, 
10 months and 6 days of creditable active service, 18 days of time lost and 
61 days of excess leave.  He was issued a General Discharge Certificate.

13.  Army Regulation 635-200, in effect at the time, provided the option of characterizing a soldier’s service as under honorable conditions (general discharge) when his or her military record is not sufficiently meritorious to warrant an honorable discharge.  

14.  The Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge on an unknown date (Board date is not in file).

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged at his request so he could enroll in college.  At that time, he could have been issued either an honorable or a general discharge. Based on the applicant’s record of three NJP’s and two court-martial convictions, a general discharge would appear to have been appropriate.

2.  The fact that the applicant has been a productive citizen since his discharge is commendable.  However, his post-service conduct is not sufficiently mitigating to warrant upgrading a properly issued discharge 

3.  The record does not contain any evidence nor has the applicant submitted any evidence to prove an error or injustice.
4.  In view of the foregoing, there is no basis for granting the applicant’s request.

5.  Records show the applicant should have discovered the error or injustice now under consideration on 25 August 1971; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 25 August 1974. 0While, the applicant did not file within the 3-year statute of limitations, it would be in the interest of justice to excuse failure to file in this case and consider the case on its merits because the applicant’s request is based on his post service conduct.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___fne __  ___kah___  ___jpi __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.

		___________Fred N. Eichorn_________
		        CHAIRPERSON

INDEX

CASE ID	AR2003088855	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040205	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19710825	
DISCHARGE AUTHORITY	AR 635-200, CH 5	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.