RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 February 2005
      DOCKET NUMBER:  AR20040000236


      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. Prevolia Harper               |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Yolanda Maldonado             |     |Chairperson          |
|     |Mr. Ronald Weaver                 |     |Member               |
|     |Mr. Jonathon K. Rost              |     |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, in effect, that his undesirable discharge (UD)
be upgraded to an honorable discharge.

2.  The applicant states his legal counsel advised him to take a discharge
rather than face a prison term and that he could have his discharge changed
after
20 years.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 13 October 1967, the date of his separation from active
service.  The application submitted in this case is dated 16 April 2004.

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 enlisted at the age 17 with parental consent on 20 July
1966 for a period of three years.  The applicant did not complete basic
combat training; he was recycled as a training failure on 5 separate
occasions.  He was separated from active service on 13 October 1967 with an
undesirable discharge.

4.  Records show that the applicant was reported absent without leave
(AWOL) on 4 March 1967 while in basic combat training at Fort Polk,
Louisiana.  He was subsequently returned to military control on 17 March
1967 by civilian authorities in San Antonio, Texas.

5.  The applicant's records contain a certificate, dated 31 March 1967,
provided by the Chief of Mental Hygiene Consultation Service at Fort Polk.
This certificate confirmed that the applicant underwent a psychiatric
evaluation as part of the Mental Hygiene Stockade Program.  The medical
officer indicated the applicant was free from mental defect, disease, or
derangement and concerning the particular acts charged, both mentally
responsible, able to distinguish right from wrong and adhere to the right,
and had the mental capacity to understand and participate in board
proceedings.
6.  The medical officer also stated that the applicant had no mental or
physical defects warranting admission to or final disposition through
medical channels.  The medical officer noted that the applicant was not
mentally ill and was cleared for action deemed appropriate by his command
including disciplinary action and administrative separation.

7.  On 5 April 1967, the applicant was tried and convicted by Special Court-
Martial at Fort Polk, Louisiana, for being AWOL during the period 4 March
through 17 March 1967.  His punishment consisted of confinement at hard
labor for six months and forfeiture of $60 per month for six months.  His
sentence was approved by the convening authority on 14 April 1967.

8.  Special Court-Martial Order Number 22, dated 11 May 1967, shows that
the unexecuted portion of the applicant's sentence of confinement at hard
labor for six months and forfeiture of pay for six months (for being AWOL
during the period 4 March through 17 March) was suspended for six months.
The suspended portion of the sentence was remitted without further action.

9.  On 12 May 1967, the applicant was tried and convicted by a Special
Court-Martial for disobeying a lawful command from his superior officer.
His punishment consisted of confinement at hard labor for six months and
forfeiture of $60 per month for six months.

10. On 13 July 1967, the applicant was tried and convicted by a Special
Court-Martial for willfully disobeying a lawful order from a superior
officer to take the Physical Combat Proficiency Test.  His punishment
consisted of confinement at hard labor for six months and forfeiture of $60
per month for six months.  A previous conviction was considered during this
court-martial.  The sentence was adjudged on 21 July 1967.

11.  On 14 August 1967, the applicant's commander stated in a memorandum
that the applicant was being considered for separation due to unfitness.
He provided his justification for the discharge by stating that the
applicant had been assigned to training duties in four Basic Combat Units
within the 1st Training Brigade and that the applicant failed to respond to
innumerable periods of counseling.  The commander continued that military
superiors and medical examiners both agreed that further rehabilitative
efforts would be useless.





12.  The company commander noted that the applicant remained adamant and
unyielding despite counseling and at all times manifested a careless
disregard
for the possible consequences of his refusal to train.  He further noted
that the applicant had two convictions by Special Court-Martial and that he
was under consideration for a third court-martial for insubordination.

13.  The company commander also submitted a DA Form 1049 (Personnel
Action), dated 14 August 1967, to initiate separation action.  The
commander stated that the applicant was totally unfit for further military
service and strongly recommended that the applicant be separated from the
military under provisions of Army Regulation 635-212 (Unfitness).

14.  On 15 August 1967, the applicant signed a statement in which he
acknowledged that he had been informed of the separation action.  The
applicant provided a statement in response to the separation action in
which he stated that he wished for elimination from the service because he
did not believe in what the Army was doing to people in Vietnam and
elsewhere.  The applicant further stated that he did not like to see people
get killed and the Army was good for getting people killed.

15.  The applicant continued that he felt that killing in war was avoidable
and old people and babies in Vietnam are killed.  He stated that this is
why he did not want to be in the Army.  The applicant emphatically stated
that he would not train anymore or take orders from anyone.  He concluded
by stating that he "despised the Army."

16.  On 4 October 1967, the applicant's discharge under the provisions of
Army Regulation 635-212 was approved by the commanding general of Fort
Polk, Louisiana.

17.  On 13 October 1967, the applicant received a UD in accordance with
Army Regulation 635-212.  He completed 7 months and 24 days of creditable
active military service and had 215 days of lost time due to AWOL and
confinement.

18.  Army Regulation 635-212, then in effect, set forth the policy and
procedures for administrative separation of enlisted personnel for
unfitness. It provided, in pertinent part, for discharge due to unfitness
because of apathy of those individuals who displayed a lack of appropriate
interest and/or an inability to expend effort constructively.  When
separation for unfitness was warranted an honorable or general discharge
was issued as determined by the separation authority based upon the
individual's entire record.

19.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits

provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct
and performance of duty for Army personnel (emphasis added), or is
otherwise
so meritorious that any other characterization would be clearly
inappropriate.  Whenever there is doubt, it is to be resolved in favor of
the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his legal counsel advised him to take the
discharge rather than face a prison term.

2.  There is no evidence that applicant’s legal counsel acted improperly.
In fact, the applicant signed a statement attesting to the fact that he
despised the Army and would not train.  Therefore, it is not unreasonable
to believe that legal counsel may have advised the applicant to accept a
discharge instead of prison.

3.  The applicant's records do not contain all of his separation processing
documents.  In the absence of evidence to the contrary, it is presumed that
the applicant's separation was accomplished in compliance with applicable
regulation and without procedural errors that would jeopardize his rights.


4.  The applicant requests that his discharge be upgraded to an honorable
discharge.  However, his records show that he was convicted by special
courts-martial on three separate occasions.  Based on these facts, the
applicant’s service clearly did not meet the standards of acceptable
conduct and performance of duty for Army personnel which are required for
issuance of an honorable discharge.

5.  Based on the applicant’s multiple offenses, his record of service did
not meet the regulatory standard of satisfactory service.  In the absence
of a record of satisfactory service, the applicant is not entitled to a
under honorable conditions discharge.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 13 October 1967; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
12 October 1970.  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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__ym____  __rw____  __jkr___  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.




                                        Yolanda Maldonado
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040000236                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050224                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19671013                                |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.7110                                |
|2.                      |144.7800                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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