RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        16 December 2004
      DOCKET NUMBER:  AR20040000361


      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             |
|     |Mr. Michael J. Fowler             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Maribeth Love                 |     |Chairperson          |
|     |Mr. Ronald J. Weaver              |     |Member               |
|     |Ms. Yolanda Maldonado             |     |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 that his discharge be upgraded from undesirable
under other than honorable conditions to an honorable discharge for medical
reasons.

2.  The applicant states, in effect, that he was young at the time of his
military service and did not realize the consequences of his choices.

3.  The applicant provides no documentation in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an error that occurred on
28 June 1971, the date of his separation from active duty.  The application
submitted in this case is dated 26 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 in the Regular Army on 30 November 1968 and
successfully completed basic training and advanced individual training.  He
was awarded military occupational specialty 55A (Ammunition Storage
Apprentice).

4.  On 1 May 1969, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for insufficient
funds on a written check.

5.  On 5 September 1969, the applicant was convicted by a special court-
martial for being absent without leave (AWOL) for the period 29 May 1969
through 25 June 1969 and 4 July 1969 through 29 July 1969.  He was
sentenced to be reduced to private/pay grade E-1, to perform hard labor
without confinement for 45 days, and to forfeit of $25.00 for four months.

6.  On 22 December 1969, the applicant was convicted by a special court-
martial for being AWOL for the period 29 September 1969 through 14 October
1969.  His sentence consisted of a forfeiture of $75.00 for three months.

7.  On 18 February 1970, the applicant accepted NJP under Article 15, UCMJ
for being AWOL for the period 5 January 1970 through 10 February 1970.

8.  Records show that the applicant was AWOL for the period 10 March 1970
through 19 May 1971.  The applicant's records further show that he returned
to military control at Fort Belvoir, Virginia on 24 May 1971.

9.  A DD Form 458 (Charge Sheet), dated 25 May 1971, shows charges were
preferred against the applicant for being AWOL for the period 10 March 1970
through 19 May 1971.

10.  On 26 May 1971, the applicant was informed of the charges against him
by the Assistant Adjutant, Special Processing Company, Fort Belvoir,
Virginia.

11.  On 1 June 1971, after consulting with counsel, the applicant submitted
a request for discharge for the good of the service under the provisions of
chapter 10 of Army Regulation 635-200 (Personnel Separations).  The
applicant indicated in his request that he understood he could be
discharged under other than honorable conditions and furnished an Under
Other Than Honorable Conditions Discharge Certificate; that he may be
deprived of many or all Army benefits; that he may be ineligible for many
or all benefits administered by the Department of Veterans Affairs; and
that he may be deprived of his rights and benefits as a veteran under both
Federal and State law.  He also acknowledged that he may expect to
encounter substantial prejudice in civilian life because of an Under Other
Than Honorable Conditions Discharge.

12.  A Standard Form 88 (Report of Medical History), dated 8 June 1971,
shows that the applicant was qualified for separation and had no
disqualifying mental disease or condition.

13.  A Standard Form 89 (Report Of Medical Examination), dated 8 June 1971,
shows that the applicant was being separated and that his present health
was "good."

14.  On 12 June 1971, the appropriate authority approved the applicant's
request for discharge for the good of the service.  He directed that the
applicant be issued an Undesirable Discharge and be reduced to the lowest
enlisted grade.  The applicant completed 10 months and 16 days of
creditable active service of a 2-year enlistment with 443 days of lost time
due to AWOL and confinement.

15.  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.

16.  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.

17.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the soldier’s separation specifically allows such
characterization.

18.  Army Regulation 635-40 governs the evaluation of physical fitness of
soldiers who may be unfit to perform their military duties because of
physical disability.  The unfitness is of such a degree that a soldier is
unable to perform the duties of his office, grade, rank or rating in such a
way as to reasonably fulfill the purposes of his employment on active duty.
 Paragraph 4-3 states that an enlisted soldier may not be referred for, or
continue, physical disability processing when action has been started under
any regulatory provision which authorizes a characterization of service of
under other than honorable conditions. An exception may be made by the
general court-martial convening authority if the disability is the cause,
or a substantial contributing cause, of the misconduct that might result in
a discharge under other than honorable conditions or other circumstances
warrant disability processing instead of alternate administrative
separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant request that his discharge be upgraded from under other
than honorable conditions to an honorable discharge for medical reasons.
However, the applicant's Report of Medical History and Report of Medical
Examination completed at the time of his separation show that his health
was good and that he was qualified for separation prior to his discharge.

2.  The applicant contends that he was very young at the time and that he
did not realize the consequences of his choices.  Records show that the
applicant was 18 years old at the time of his first offense and almost 20
years old at the time of his discharge.  His contention that he was young
at the time of his offenses does not mitigate his indiscipline.  His
request for discharge outlined all the possible consequences of his
separation.

3.  Evidence shows that the applicant was properly and equitably discharged
in accordance with the regulations in effect at the time.

4.  The applicant's records show that he was convicted by two special
courts-martial, received two Article 15s, and had four instances of AWOL.
The applicant had completed only 10 months and 16 days of his 2-year
enlistment with a total of 443 lost days due to AWOL and confinement.
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
general discharge.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 June 1971; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
27 June 1974.  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

___ML___  __RJW__  __YM___  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.




                                  __Ms. Maribeth Love____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040000361                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |                                        |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0400.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]