RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            20 NOVEMBER 2003                  
	DOCKET NUMBER:   AR2003089598

	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. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Joann L. Langston		Chairperson	
	Ms. Linda D. Simmons		Member	
	Mr. Robert L. 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 undesirable discharge be upgraded.

2.  The applicant states, in effect, that not all sides of the story were told during his discharge.  He states that there was no actual physical contact and that the sergeant of the day was the brother-in-law of the woman he was dating at the time.  He notes that it has been 30 years since he was discharged and that he did two overseas tours.  He states that he did have one honorable discharge prior to his undesirable discharge.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on 
20 February 1972.  The application submitted in this case is dated 24 March 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.  Records available to the Board indicate that the applicant entered active duty on 17 July 1968.  Upon successful completion of basic and advanced individual training the applicant was assigned to a quartermaster company in Vietnam.  

4.  His records indicate that he was temporarily appointed to pay grade E-4 in December 1968, but returned to his permanent grade of E-2 in April 1969.  In September 1969 he was reduced to pay grade E-1.  Documents associated with his reduction to pay grade E-2 and to E-1 were not in records available to the Board.

5.  In October 1969, while still in Vietnam, the applicant was convicted by a special court-martial of being drunk on duty at 1400 hours on 1 October 1969.

6.  In December 1969 he was, once again, advanced to pay grade E-2.

7.  The applicant departed Vietnam in January 1970 and was assigned to Fort Hood, Texas.  He was promoted to pay grade E-3 in August 1970.

8.  On 8 September 1970 the applicant was honorably discharged for the purpose of immediate reenlistment.  On 9 September 1970 he executed a 4 year reenlistment contract, which guaranteed him an assignment in Europe.

9.  On 15 September 1970, prior to departing Fort Hood enroute to Europe, the applicant was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for 2 days of AWOL (absent without leave).

10.  The applicant arrived in Germany in November 1970 and in January 1971 was punished under Article 15 of the UCMJ for being disrespectful toward an officer and for being drunk and disorderly.  His punishment included reduction to pay grade E-2.

11.  Documents in the applicant's file indicate that in April 1971 the applicant was recalled to the United States after it was discovered that his September 1970 reenlistment action was fraudulent.  It was discovered that in May 1970 the applicant had been "arrested, detained and charged with allegedly willfully destroying private property of a value exceeding $50.00."  The applicant was released on bond and directed to appear in District Court, Bell County, Texas, on 9 October 1970.  He failed to appear for court and as such his bond was revoked.

12.  The applicant returned to the United States in April 1971 and was assigned to Fort Hood.  Although documents associated with the resolution of his fraudulent reenlistment contract were not in records available to the Board, the issue was apparently resolved and the applicant was permitted to remain on active duty.  There is one document in the applicant's file, which indicates that he was placed on 7 years of probation as a result of his civil conviction.

13.  In July 1971 the applicant was punished a third time under Article 15 of the UCMJ for being absent from his place of duty.

14.  In December 1971 the applicant was barred from reenlisting.  His commander noted that the applicant had frequently been a disciplinary problem, required frequent counseling and supervision, that his military appearance, maintenance of equipment, and military bearing were below expected standards, and that he had been punished several times under the UCMJ.

15.  In January 1972 charges were preferred against the applicant for assaulting a noncommissioned officer in the execution of his duties and communicating a threat to injure the sergeant.  Statements included with the charges indicated that the applicant entered the unit orderly room and told the CQ (charge of quarters) sergeant that he (the applicant) had been to see the sergeant's wife at her home. The sergeant told the applicant to leave his wife alone and an argument ensued. The Battalion Staff Duty Officer reported that the applicant, "with no provocation" from the sergeant, hit and kicked the sergeant.  The Duty Officer stated that he and several other Soldiers "physically restrained [the applicant] and took a knife from him which he had pulled out of his pocket."

16.  Once charges were preferred, the applicant consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, Chapter 10.  His request acknowledged he understood the nature and consequences of the undesirable discharge, which he might receive.  He indicated he understood he could be denied some or all veterans' benefits as a result of his discharge and that he may be deprived of rights and benefits as a veteran under both Federal and State law.  He did not submit any statements on his own behalf.

17. Although one member of the applicant's chain of command recommended disapproval of his request, the separation authority approved the applicant's request and directed that an undesirable discharge be issued.  On 
20 February 1972 the applicant was separated under the provisions of Army Regulation 635-200, Chapter 10.

18.  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 undesirable discharge.

19.  There is no indication that the applicant petitioned the Army Discharge Review Board to have his discharge upgraded.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.  His contention that only one side of the story was told, and that there was no physical contact between him and the sergeant is not supported by any evidence in available records, or provide by the applicant.  

2.  While the applicant’s contention that it has been 30 years since his discharge and that he served two overseas tours, has been noted, it does not outweigh the seriousness of his conduct while in the military and does not provide an adequate basis upon which to grant relief.
3.  The mere passage of time is not a sufficient basis to justify upgrading the applicant's discharge as a matter of equity.

4.  Records show the applicant should have discovered the error or injustice now under consideration on 20 February 1972; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 20 February 1975. 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

__JHL    _  __LDS __  __RLD __  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 or to excuse the applicant's failure to file this application with the ABCMR within its 3-year statute of limitations.  Therefore, the Board does not excuse the applicant's failure to timely file within the time prescribed by law and this application is denied for that reason.

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2003089598	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031120	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.