RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 March 2005
      DOCKET NUMBER:  AR20040004087


      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:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Ms. Margaret K. Patterson         |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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
to a general under honorable conditions discharge.

2.  The applicant states, in effect, that he was serving in the Republic of
Korea and was notified by the Red Cross that his sister was involved in a
serious accident.  He further states that he went to his chain of command
and requested to take emergency leave because his sister was involved in a
serious industrial accident.  He states his request was denied and he was
told that his job was more important than being with his sister.

3.  The applicant states that he was accused of selling drums of fuel.  He
continued that the U.S. Army offered to drop all charges against him if he
reenlisted for six years with a $6,000 bonus and be promoted to the grade E-
6 with a two-week rest and relaxation in Australia.  The applicant states
that he told them no and that then they gave him a court-martial and an
undesirable discharge.

4.  The applicant concludes that he attended his Army Discharge Review
Board (ADRB) at Fort Benjamin Harrison, Indiana in 1975 and was told his
discharge would be upgraded if he went back to school and acquire a General
Educational Development (GED) Diploma.  He states that he now has his
diploma.

5.  The applicant provides a DD Form 214 (Armed Forces of the United States
Report of Transfer or Discharge) and a DD Form 293 (Application for the
Review of Discharge or Dismissal from the Armed Forces of the United
States).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 23 February 1971.  The application submitted in this case is
dated 17 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 limitations 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 July 1969 and
successfully completed basic training and advanced individual training.  He
was awarded military occupational specialty 13A (Field Artillery Basic).
The highest grade he held in the military was private first class/pay grade
E-3 with a date of rank of 29 January 1970.

4.  On 11 May 1970, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for being asleep
on his post.

5.  On 16 June 1970, the applicant accepted NJP under Article 15, UCMJ for
being absent without leave (AWOL) for the period from 13 June 1970 through
14 June 1970.

6.  On 15 July 1970, the applicant accepted NJP under Article 15, UCMJ for
misappropriation of a government vehicle.

7.  On 9 November 1970, the applicant underwent a mental evaluation by a
medical physician that determined that he could distinguish right from
wrong and that he possessed sufficient mental capacity to understand and
participate in board proceedings.  The psychiatrist noted that as a result
of the examination the applicant has an immature personality (passive-
aggressive type) and has a below average intelligence.

8.  On 5 December 1970, the applicant accepted NJP under Article 15, UCMJ
for being AWOL for the period from 23 November 1970 through 26 November
1970.

9.  Apparently the applicant was notified by his commander that he was
required to appear before a board of officers to determine whether he
should be discharged for unfitness under provisions of Army Regulation 635-
212 (Discharge-Unfitness and Unsuitability), paragraph 6 for unfitness for
duty.

10.  On 6 January 1971, the applicant consulted with the Defense Counsel at
the 2nd Infantry Division.  The applicant was advised of his rights and the
effect of a waiver of those rights.

11.  The applicant was also advised of the basis for his separation under
the provisions of Army Regulation 635-212.  The applicant indicated that he
was counseled by appropriate counsel, that he waived consideration of his
case by a board of officers, that he did not provide statements on his own
behalf and that he waived representation by military counsel that he did
not provide statements on his own behalf and that he waived representation
by military counsel.


12.  The applicant also indicated that he was aware that as a result of the
issuance of an undesirable discharge that he may be ineligible for any or
all benefits as a veteran under both Federal and state laws and that he may
expect to encounter substantial prejudice in civilian life based on that
undesirable discharge.

13.  On 27 January 1971, the unit commander recommended the applicant be
separated for unfitness based on frequent incidents of a discreditable
nature and an established pattern of shirking under the provisions of
paragraph 6 of Army Regulation 635-212.

14.  On 20 February 1971, the appropriate authority approved the
applicant's discharge for unfitness under the provisions of Army Regulation
635-212.  He directed that the applicant be issued an "Undesirable
Discharge Certificate."

15.  On 23 February 1971, the applicant was discharged, with an undesirable
discharge, in pay grade E-1 for unfitness.  He had completed 1 year, 6
months, and 24 days of creditable active service.  His DD 214 shows he had
no lost time.

16.  The applicant applied to the Army Discharge Review Board (ADRB) to
upgrade his discharge.  On 15 December 1975, the ADRB reviewed and denied
the applicant's request for upgrade.  The ADRB determined that the
applicant's discharge was proper and equitable and that the discharge was
properly characterized as undesirable.

17.  Army Regulation 635-212, in effect at the time, set forth the basic
authority for the elimination of enlisted personnel.  Paragraph 6 of the
regulation provided, in pertinent part, that an individual was subject to
separation for unfitness because of frequent incidents of a discreditable
nature with civil or military authorities; sexual perversion including but
not limited to lewd and lascivious acts, indecent exposure, indecent acts
with or assault on a child; drug addiction or the unauthorized use or
possession of habit-forming drugs or marijuana; an established pattern of
shirking; and an established pattern of dishonorable failure to pay just
debts or to contribute adequate support to dependents (including failure to
comply with orders, decrees or judgments).  At the time, an undesirable
discharge was normally considered appropriate.





18.  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.

19.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (Army Regulation 15-185,
paragraph 2-8), effectively shortens that filing period, has determined
that the 3 year limit on filing to the ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the ABCMR has
adopted the broader policy of calculating the 3-year time limit from the
date of exhaustion in any case where a lower level administrative remedy is
utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he went to his chain of command and
requested to take emergency leave because his sister was involved in a
serious industrial accident.  He states his request was denied and he was
told that his job was more important than being with his sister.

2.  There is no evidence and the applicant has not provided evidence that
shows he sought assistance from his chain of command, chaplain, or
community support service for his family problem.  Therefore, there is no
basis for this argument.

3.  The applicant contends that the U.S. Army offered to drop all charges
against him if he reenlisted.  There is no evidence to show that charges
were preferred against him.  His records show that he accepted nonjudicial
punishment on four occasions under Article 15, UCMJ and he was
administratively discharged from the service for frequent incidents of a
discreditable nature and established patterns of shirking.  The applicant's
records show that he received four Article 15s.  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 general or honorable discharge.



4.  Evidence shows that the applicant was properly and equitably discharged
in accordance with the regulations in effect at the time.  Evidence of
record further show that he waived consideration of his case by a board of
officers and that he did not provide statements on his own behalf both
opportunities where he could have presented his contentions at that time.

5.  In the absence of evidence to the contrary, it is determined that all
requirements of law and regulations were met and the rights of the
applicant were fully protected throughout the separation process.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 December 1975, the date of the ADRB
action; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 14 December 1978.  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

___FE___  __MKP__  ___CAK_  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.




                                  ____ Mr. Fred Eichorn__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040004087                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |3 March 2005                            |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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