RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           29 January 2004
	DOCKET NUMBER:   AR2003089610

	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. Carolyn Wade		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Walter T. Morrison		Member	
	Ms. Karen Y. Fletcher		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 DD Form 214 (Report of Separation from Active Duty) be corrected to show that he was honorably discharged.

2.  The applicant states that he believes that his discharge should be upgraded to Honorable.

3.  The applicant provides a copy of his DD Form 214 for the period of service ending 26 September 1974.

4.  The applicant provides a statement in his own behalf, dated 26 November 2002, in which he explains his actions from entry into the Army to the present time.

5.  The applicant provides two statements on his behalf, one from the Boulder Veteran Center and the other from his sister.

6.  The applicant also provides 10 pages of service medical records.

7.  The applicant provides service personnel records pertaining to his discharge proceedings from the Army. 

8.  The applicant provides a letter from Army Review Boards Agency, Support Division, St. Louis, dated 30 January 2003, informing him that he was beyond the statute of limitations to apply to the Army Discharge Review Board (ADRB).

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error or injustice which occurred on 26 September 1974.  The application submitted in this case is dated 3 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.  The applicant was inducted into the Army of the United States on 4 April 1968 for a period of 2 years and training in military occupational specialty (MOS) 63A, Mechanical Maintenance Apprentice.  Following completion of all required military training, the applicant was assigned to Vietnam as his first permanent duty assignment.

4.  On 18 May 1969, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for behaving in a disrespectful manner toward his superior commissioned officer.  His punishment consisted of reduction to the rank of private first class/E-3 and forfeiture of $34.00 pay per month for 1 month. 

5.  On 21 June 1969, while serving in Vietnam, the applicant was wounded.  He was initially treated at the 106th General Hospital and, on 29 June 1969, was subsequently transferred to Fitzsimons Army Hospital, Fort Carson, Colorado, for further treatment.

6.  On 22 July 1969, while still a patient at Fitzsimons Army Hospital, the applicant departed his unit absent without leave (AWOL) and remained absent until on or about 4 February 1970.

7.  On 24 February 1970, at Fort Carson, a special court-martial found the applicant guilty of AWOL from 22 July 1969 to on or about 4 February 1970.  He was sentenced to confinement at hard labor for 6 months (suspended, effective 23 March 1970) and forfeiture of $82.00 pay per month for 6 months.  The sentence was approved on 20 March 1970.

8.  On 27 March 1970, the applicant was assigned to Headquarters and Headquarters Company, 2nd Battalion 10th Infantry, 5th Infantry Division, Fort Carson.

9.  On 18 May 1970, the applicant departed his unit AWOL and he remained absent until 19 August 1974 when the Federal Bureau of Investigation apprehended him at Walsenburg, Colorado.  He was returned to military control at Fort Carson on the same day.

10.  On 20 August 1974, the applicant having been advised by counsel, voluntarily and in writing, requested discharge under the provisions of chapter 10, Army Regulation 635-200 for the good of the service in lieu of trial by court-martial.  He provided a statement in his own behalf.  He stated that he did not desire to stay in the Army any longer and that he had a family to support.

11.  On 19 September 1974, the Staff Judge Advocate (SJA) noted that the applicant had elected to submit a request for discharge under the provisions of chapter 10, Army Regulation 635-200 instead of action under the President's Amnesty Program.  The SJA recommended approval of the chapter 10 request and issuance of an undesirable discharge

12.  On 20 September 1974, the applicant's request for discharge under the provisions of chapter 10 was approved with the issuance of an undesirable discharge certificate and reduction to the lowest enlisted grade.

13.  Accordingly, on 26 September 1974, the applicant was discharged from the Army with an undesirable discharge.  He was credited with 1 year, 5 months, and 16 days of active military service and 1, 833 days of lost time.  

14.  His DD Form 214 credits him with the following awards and decorations:  the National Defense Service Medal, the Vietnam Service Medal with 2 Bronze Service Stars, the Vietnam Campaign Medal with 60 Device, the Combat Infantryman Badge, the Purple Heart, the Marksmanship Badge with M-14 Rifle Bar, the Sharpshooter Badge with M-16 Rifle Bar, and one Overseas Service Bar.

15.  Presidential Proclamation Number 4313 was issued by President Ford and affected three groups of individuals.  These groups were: (1) Fugitives from 
justice who were draft evaders; (2) Members of the Armed Forces who were in an unauthorized absence status; and, (3) Prior members of the Armed Forces who had been discharged with a punitive or undesirable discharge for violation of Articles 85, 86, or 87 of the Uniform Code of Military Justice.  It provided an opportunity for deserters to work their way back into American society.

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The Board noted that after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offenses 

under the UCMJ.  The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

2.  The Board carefully reviewed all of the applicant’s faithful and honorable service as well as his misconduct.  The applicant's extended periods of AWOL, totaling 1, 833 days, adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline.  These incidents of misconduct clearly diminished the quality of the applicant’s service below that meriting a general or fully honorable discharge.

3.  Records show the applicant should have discovered the error or injustice now under consideration on 26 September 1974; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 25 September 1977.  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 in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__rvo___  __wtm___  __kyf___  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.  

		Raymond V. O'Connor, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2003089610	
SUFFIX		
RECON		
DATE BOARDED	20040129	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19740926	
DISCHARGE AUTHORITY	AR 635-200, Chap 10. . . . .  	
DISCHARGE REASON	A70.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.0000	
2.	144.7000	
3.		
4.		
5.		
6.