RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           17 February 2005
      DOCKET NUMBER:  AR20040001792


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Thomas D. Howard              |     |Chairperson          |
|     |Mr. John Infante                  |     |Member               |
|     |Ms. Maribeth Love                 |     |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, an upgrade of his undesirable
discharge (UD) and correction of the number of days of time lost recorded
on his separation document (DD Form 214).

2.  The applicant states, in effect, that he was absent without leave
(AWOL) only twice and the total number of days was not 364, as is indicated
on his DD Form 214.  He further states that he had a very serious problem
with drinking and tried several times to get help for this problem;
however, his unit commander just told him to buck up.  He states that his
mother died while he was in Vietnam and this was the first time he went
AWOL.  He claims that he went AWOL the second time when his wife wrote him
and told him she had another man’s child.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 4 March 1971.  The application submitted in this case is
dated
11 May 2005.

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’s record shows that he initially enlisted in the Regular
Army and entered active duty on 16 March 1964.  He was trained in, awarded
and served in military occupational specialty (MOS) 11B (Infantryman).

4.  On 8 December 1965, the applicant was honorably discharged for the
purpose of immediate reenlistment and on 9 December 1965, he reenlisted for
six years.  He was retrained in and awarded the primary MOS 71N
(Movements Specialist).

5.  The applicant’s Enlisted Qualification Record (DA Form 20) shows, in
Item 31 (Foreign Service), that he completed an overseas tour in Korea
between
15 September 1964 and 29 September 1965 and a tour in the Republic of
Vietnam (RVN) from 10 September 1966 through 8 August 1968.  It also shows
that he served in the RVN a second time from 21 October 1969 through
7 February 1970.

6.  Item 33 (Appointments and Reductions) of the applicant’s DA Form 20
shows that he was promoted to specialist five (SP5) on 13 January 1967 and
that this was the highest rank he held while serving on active duty.  It
also shows that he was reduced to specialist four (SP4) for cause on 18
March 1969.  Item 41 (Awards and Decorations) shows he earned the following
awards during his active duty tenure:  Vietnam Service Medal, Republic of
Vietnam Campaign Medal with 60 Device, National Defense Service Medal, 3
Overseas Bars and Expert Qualification Badge with Rifle Bar.

7.  Item 44 (Time Lost Under Section 972, Title 10, United States Code) of
the applicant’s DA Form 20 contains entries indicating the applicant
accrued
364 days of time lost.  This included two separate periods of AWOL totaling

261 days and four separate periods of confinement totaling 103 days.

8.  The applicant’s disciplinary history includes his acceptance of
nonjudicial punishment (NJP) under the provisions of Article 15 of the
Uniform Code of Military Justice (UCMJ) on the following three separate
dates for the offense(s) indicated:  2 April 1965, for failing to safeguard
classified materials;
15 September 1967, for two specifications of being absent from his
appointed place of duty; and 27 September 1967, for being absent from his
appointed place of duty.

9.  The disciplinary record also includes the three court-martial
convictions.  On
17 August 1965, a summary court-martial convicted the applicant of
violating Article 121 of the UCMJ by wrongfully appropriating a government
motor vehicle. On 18 March 1969, a special court-martial convicted the
applicant of violating Article 86 of the UCMJ by being AWOL from 16 January
through 14 February 1969; and on 21 January 1971, a special court-martial
convicted the applicant of violating Articles 86 and 128 of the UCMJ by
being AWOL from on or about
7 February through on or about 26 September 1970 and unlawfully striking a
staff sergeant.
10.  On 25 January 1971, the applicant’s unit commander at the special
processing company, Fort Knox, Kentucky, notified the applicant he was
recommending his discharge under the provisions of Army Regulation 635-212,
by reason of unfitness.

11.  On 28 January 1971, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation, its effects and of
the rights available to him.  Subsequent to this counseling, the applicant
elected to waive his right to have his case considered by a board of
officers, personal appearance before a board of officers, and
representation by counsel.  He also elected not to submit a statement in
his own behalf.

12.  On 16 February 1971, the applicant’s commander recommended he be
separated for unfitness based on his disciplinary history, which included
two periods of AWOL, four periods of confinement and three court-martial
convictions.

13.  On 1 March 1971, the separated authority directed the applicant be
separated under the provisions of Army Regulation 635-212, by reason of
unfitness and that he receive an UD.  On 4 March 1971, the applicant was
discharged accordingly.

14.  The DD Form 214 issued to the applicant on the date of his discharge,
4 March 1971, confirms he completed a total of 4 years, 2 months and 24
days of creditable active military service and accrued 364 days of time
lost due to AWOL and confinement.

15.  There is no indication the applicant applied to the Army Discharge
Review Board (ADRB) for an upgrade of his discharge within its 15-year
statute of limitations.

16.  Army Regulation 635-212, in effect at the time, set forth the basic
authority, established the policy, and prescribed the procedures for
separating members for unfitness.  An undesirable discharge was normally
considered appropriate for members separating under these provisions.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his drinking and family problems
impaired his ability to serve were carefully considered.  However, these
factors are not sufficient mitigating to warrant an upgrade of his
discharge at this late date.

2.  The applicant’s claim that the time lost reflected on his DD Form 214
is inaccurate was also evaluated.  However, the record confirms the
applicant had two separate periods of AWOL totaling 261 and four separate
periods of confinement totaling 103 days, which results in a total of 364
days of time lost.  Thus, the total number of days of time lost is
correctly reflected on the applicant’s separation document.

3.  The evidence of record confirms his unit commander notified the
applicant of the contemplated separation action and that he consulted legal
counsel.  It further shows that after being advised of the basis for the
contemplated separation action and its possible effects, he voluntarily
elected to waive his right to have his case considered by a board of
officers and he elected not to submit a rebuttal statement in his own
behalf.

4.  Lacking evidence to the contrary, it is concluded that all requirements
of law and regulation were met, the rights of the applicant were fully
protected throughout the separation process.

5.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 4 March 1971.  Therefore, the time for
him to file a request for correction of any error or injustice expired on 3
March 1974.  However, he failed to 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

___TDH _  ___JI ___  ___MBL _  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.




            ____Thomas D. Howard__
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040001792                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/02/17                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1971/03/04                              |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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