RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          17 March 2005
      DOCKET NUMBER:  AR20040002649


      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. Rosa M. Chandler              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John E. Denning               |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 undesirable discharge (UD) be upgraded
to a general discharge (GD) under honorable conditions.

2.  The applicant states that as a young man, he was very confused and he
made some bad choices, however, he has rehabilitated himself over the
years.  He believes that his abusive parents and the Army may have
contributed to his problems.

3.  The applicant provides in support of his request five-character
reference letters that were written by a sheriff, a pastor, the wife of an
employer, and two close acquaintances.  The Sheriff of Gray County, Texas
states that the applicant has never engaged in any criminal activity in
Gray County.  The additional letters state that the applicant is a
hardworking, trustworthy, honest, dependable, ethical, family man, and that
he lives a wholesome life.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 28 October 1970.  The application submitted in this case is
dated 15 April 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.  On 30 April 1969, at age 19, the applicant enlisted in the Regular Army
for
2 years.  On 7 April 1970, while in a trainee status, at Fort Sill,
Oklahoma, the applicant was convicted by a special court-martial (SPCM) of
being absent without leave (AWOL) from his unit from 28 July 1969 to 10
February 1970, and from 1 to 23 March 1970.  He was sentenced to a
forfeiture of $35.00 pay per month for 4 months and confinement at hard
labor for 4 months.

4.  The applicant completed the training requirements and was awarded
military occupational specialty (MOS) 64B (Truck Driver).  On 18 June 1970,
he was assigned to Fort Hood, Texas with duties in his MOS.

5.  On 25 September 1970, a bar to reenlistment was initiated against the
applicant.  The bases cited for the bar were the above periods of AWOL.
The applicant declined to make a statement.

6.  On 8 October 1970, the applicant was convicted by a SPCM of being AWOL
from 18 June to 24 September 1970.  He was sentenced to a forfeiture of
$60.00 pay per month for 3 months.

7.  On 17 October 1970, the unit commander notified the applicant of his
intent to recommend that a board of officers be convened under the
provisions of Army Regulation 635-212, for the purpose of determining
whether he should be discharged for unfitness before the expiration of his
term of service.

8.  On 19 October 1970, a legal representative advised the applicant of the
basis for the contemplated separation action and its effects.  The
applicant was advised of the rights available to him.  The applicant
authenticated a statement in which he acknowledged he understood the
ramifications of receiving a UD.  He waived further legal representation
and a personal appearance before a board of officers.  He also declined to
submit a statement in his own behalf.

9.  On the same date, the commander recommended that the applicant be
separated under the provisions of Army Regulation 635-212, due to unfitness
with a UD.  On 23 October 1970, the intermediate commander recommended
approval with a UD.  On the same date, competent authority waived further
rehabilitation, approved the recommendation for discharge and directed the
issuance of a UD under the provisions of Army Regulation 635-212, by reason
of unfitness.

10.  The applicant's DD Form 214 shows he was discharged on 28 October
1970.  He had completed 4 months and 9 days of active military service and
he had 411 days of lost time due to being AWOL and in military confinement.

11.  The available evidence does not show the applicant has ever applied to
the Army Discharge Review Board (ADRB) for an upgrade of his discharge
within the ADRB's 15-year statute of limitation.

12.  Army Regulation 635-212, in effect at the time, set forth the basic
authority for the elimination of enlisted personnel who were found to be
unfit or unsuitable for military service.  The pertinent regulation further
provided, in pertinent part,
that service members discharged for unfitness would be furnished a UD,
unless circumstances warranted a general discharge or a honorable
discharge.
DISCUSSION AND CONCLUSIONS:

1.  The applicant was properly separated in accordance with regulations
then in effect and there is no indication of procedural errors, which would
have jeopardized his rights.

2.  The type of discharge directed and the reason for discharge is
appropriate considering the facts of the case.

3.  The applicant met entrance qualification standards to include age and
there is no evidence available which indicates that he was any less mature
than other Soldiers of the same age who successfully completed their
military service obligation.

4.  There is also no evidence available that indicates the applicant's
behavior was fostered by abusive parents or the Army.  The applicant has
provided no evidence to the contrary.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 October 1970; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
27 October 1973.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jed___  __jrs___  __mjf___  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.



                                  John E. Denning
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040002649                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050317                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |19701028                                |
|DISCHARGE AUTHORITY     |AR635-212                               |
|DISCHARGE REASON        |A60.00                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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