RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           17 March 2005
      DOCKET NUMBER:  AR20040003434


      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. 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, in effect, an upgrade of his undesirable
discharge (UD).

2.  The applicant states, in effect, that he did not try to avoid court-
martial, accepted his punishment and made restitution as ordered.  He
claims that since his discharge, he has tried to make a positive
contribution to society.

3.  The applicant provides a self-authored statement, copy of his
separation document (DD Form 214 and two third-party character references
in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 26 August 1970.  The application submitted in this case is
dated
23 June 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’s record shows that he initially enlisted in the Regular
Army and entered active duty on 30 September 1964.  On 30 September 1965,
he was honorably discharged for the purpose of immediate reenlistment and
on
1 October 1965, he reenlisted for six years.  He was initially awarded and
served in military occupational specialty (MOS) 64B (Heavy Vehicle Driver)
and was later awarded and served in MOS 12B (Combat Engineer).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows, in
Item 33 (Appointments and Reductions), that he was promoted to the rank of
staff sergeant (SSG) on 1 October 1967, and that this was the highest rank
he held while serving on active duty.  It also shows that on 4 April 1967,
he was reduced to sergeant (SGT) and on 24 June 1969, he was reduced to
corporal.

5.  Item 41 (Awards and Decorations) of the applicant’s DA Form 20 shows
that during his active duty tenure, he earned the National Defense Service
Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal, 1
Overseas Bar and Expert Qualification Badge with Rifle Bar.  There are no
other acts of valor, significant achievement, or service warranting special
recognition documented in the record.

6.  The applicant’s record documents a disciplinary history that includes
his acceptance of nonjudicial punishment under the provisions of Article 15
of the Uniform Code of Military Justice (UCMJ) on the following five dates
for the offense(s) indicated:  24 May 1965, for behaving in a disorderly
fashion;
31 October 1965, for being in an off-limits area; 12 March 1968, for being
absent without leave (AWOL) for 27 days; 16 July 1968, for missing
movement; and
9 December 1968, for being AWOL for 23 days.

7.  The record also shows that on 18 June 1969, a special court-martial
convicted the applicant of violating Article 86 of the UCMJ, by being AWOL
from
23 February through 27 May 1969.  The resultant sentence included a
reduction to corporal and a forfeiture of $50.00 per month for three
months.  It further shows that on 14 July 1970, a special court-martial
convicted him of violating Article 86 of the UCMJ by being AWOL from 16
September 1969 through
16 June 1970.  The resultant sentence included reduction to private/E-1,
confinement at hard labor for four months and forfeiture of $60.00 per
month for six months.

8.  The applicant’s Military Personnel Records Jacket (MPRJ) is void of a
separation packet containing the specific facts and circumstances
surrounding his separation processing.  However, it does include a DD Form
214 that shows the applicant was separated with an UD on 26 August 1970,
under the provisions of Army Regulation 635-212, for unfitness.  The
separation document also shows he completed a total of 4 years, 1 month and
4 days of creditable active military service and accrued a total of 478
days of time lost due to AWOL and confinement.

9.  The applicant provides two character references that attest to his
stellar post service employment record, character and conduct.  They also
confirm he has been a good and law abiding citizen and that he has served
as a role model and leader in the black community.

10.  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 he did not try and avoid punishment
that he paid for his mistakes, that he has been a good and productive
citizen since his discharge and the supporting third-party character
references he submitted were carefully considered.  However, while his post
service conduct is admirable, this factor alone does not support an upgrade
of his discharge at this time.

2.  The applicant’s record is void of the specific facts and circumstances
surrounding his discharge processing.  However, it does contain a properly
constituted DD Form 214 that identifies the reason and characterization of
the applicant’s discharge.  The applicant authenticated this document with
his signature on the date of his separation.  Therefore, Government
regularity in the discharge process is presumed.

3.  The record also confirms that the applicant was discharged under the
provisions of Army Regulation 635-212, for unfitness.  This separation is
supported by the extensive disciplinary history documented in the
applicant’s record.  In the absence of information to the contrary, it is
concluded that all requirements of law and regulation were met and the
rights of the applicant
were fully protected throughout the separation process.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 August 1970.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 25 August 1973.  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

___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                 |AR20040003434                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005/03/17                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1970/08/26                              |
|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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