RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 May 2007 DOCKET NUMBER: AR20060015480 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. Gerard W. Schwartz Acting Director Mr. Michael J. Fowler Analyst The following members, a quorum, were present: Mr. Crain, William Chairperson Mr. Lewy, Donald Member Mr. Venable, Roland 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 correction of his military records to remove prisoner status. 2. The applicant states, in effect, that he was not a prisoner at the time he was shot in the leg on 31 August 1971 and that there where no charges against him nor a record of him making an escape. 3. The applicant provides no additional documentation in support of this case. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged injustice which occurred on 10 April 1973. The application submitted in this case is dated 27 October 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 enlisted in the Regular Army on 16 January 1970 and successfully completed basic training and advanced individual training. He was awarded military occupational specialty 91A (Medical Corpsman). 4. On 2 June 1970, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for breaking restriction. 5. On 20 August 1970, the applicant accepted NJP under Article 15, UCMJ for failing to be at his appointed place of duty. 6. The applicant arrived in Vietnam and was assigned to Headquarters and Headquarters Company, 3rd Battalion, 506th Infantry on or about 13 January 1971. 7. On 4 February 1971, the applicant accepted NJP under Article 15, UCMJ for wrongful possession of marijuana. 8. On 31 March 1971, the applicant was convicted, contrary to his pleas, by a special court-martial of disobeying a lawful order from a commissioned officer. His sentence consisted of a forfeiture of $60.00 pay per month for four months, confinement at hard labor for four months, and reduction to the rank of Private/E-1. Confinement at hard labor for four months was suspended by the convening authority. 9. On 6 June 1971, the applicant was convicted, pursuant to his pleas, by a special court-martial of missing a movement and disobeying a lawful order from a noncommissioned officer. His sentence consisted of restriction to the company area and extra duty for 30 days. 10. The applicant's records contain Headquarters, 101st Airborne Division Support Command (Airmobile) Special Court-Martial Order Number 56, dated 5 August 1971, that vacated suspension of the unserved portion of 4 months confinement at hard labor (from his 31 March 1971 court-martial). 11. A DD Form 261 (Report of Investigation Line of Duty and Misconduct Status), dated 31 August 1971, shows that on 10 August 1971 the applicant was put into the custody of the Charge of Quarters (CQ) and he was to be guarded and escorted the next day to the U.S. Army Republic of Vietnam Installation Stockade. At or about 0400 hours on 11 August 1971, the applicant attempted to escape. 12. The document shows that after giving verbal warning and then firing warning shots over the applicant head the CQ tried to stop the applicant by shooting at his legs and did in fact stop him by wounding him in the right leg. The document further shows that the investigating officer found that the applicant's injury was not in the line of duty-due to own misconduct. 13. The applicant departed Vietnam on or about 30 August 1971. 14. The applicant's records show that he was absent without leave (AWOL) from 24 March 1972 through 26 March 1972. 15. On 23 April 1972, the applicant accepted NJP under Article 15, UCMJ for failing to be at his appointed place of duty. 16. On 7 July 1972, the applicant accepted NJP under Article 15, UCMJ for failing to be at his appointed place of duty. 17. On 2 August 1972, the applicant was barred from reenlistment for unsatisfactory efficiency and conduct. 18. The applicant's records show that he was AWOL from 14 August 1972 through 21 August 1972 and from 25 October 1972 through 5 November 1972. 19. On 13 November 1972, the applicant was convicted, pursuant to his pleas, by a special court-martial of having in his possession 1.23 grams more or less of heroin. His sentence consisted of confinement at hard labor for two months. 20. The applicant's records show that he was AWOL from 4 April 1973 through 9 April 1973. 21. On 10 April 1973, the applicant was honorably released from active duty upon his expiration of term of service in the rank of Private PVT/E-1 after completing 3 years of creditable active service with 115 days of lost time due to AWOL and confinement. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that he was not a prisoner at the time he was shot in the leg on 31 August 1971 and that there where no charges against him nor a record of him making an escape. Evidence of record shows he was convicted by three special court-martials. The first court-martial shows the convening authority suspended the sentence of confinement at hard labor for four months. However, when the applicant received his second court-martial the convening authority vacated the sentence of confinement at hard labor for four months. 2. A report of investigation shows that the applicant was placed in the custody of a CQ to be escorted to the U.S. Army Republic of Vietnam Installation Stockade to serve his confinement at hard labor for four months. While in custody of the CQ he tried to escape and after receiving several warnings he was shot in the right leg. Therefore, there are no grounds for his contentions that he was not a prisoner or that there was no record of escape. 3. Records show the applicant should have discovered the alleged error or injustice now under consideration on 10 April 1973; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 9 April 1976. 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 timely file in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __WC___ ___DL __ __RV ___ 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. __ _ William F. Crain ___ CHAIRPERSON INDEX CASE ID AR20060015480 SUFFIX RECON DATE BOARDED 31 MAY 2007 TYPE OF DISCHARGE DATE OF DISCHARGE DISCHARGE AUTHORITY DISCHARGE REASON BOARD DECISION DENY REVIEW AUTHORITY MR. SCHWARTZ ISSUES 1. 110.0000.0000 2. 134.0000.0000 3. 4. 5. 6.