RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           14 April 2005
      DOCKET NUMBER:  AR20040004288


      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. James E. Vick                 |     |Chairperson          |
|     |Ms. Ann M. Campbell               |     |Member               |
|     |Ms. Margaret V. Thompson          |     |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, that his undesirable discharge (UD)
be upgraded.

2.  The applicant states, in effect, that he was absent without leave
(AWOL), but it was not with the intent to desert.

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 7 March 1966.  The application submitted in this case is
dated
7 July 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’s record shows he enlisted in the Regular Army (RA) and
entered active duty on 6 November 1964.  He was trained in, awarded and
served in military occupational specialty (MOS) 16C (Hercules Missile
Crewman) and the highest rank he attained while serving on active duty was
private first class (PFC).

4.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.  The record does
reveal a disciplinary history that includes his acceptance of nonjudicial
punishment (NJP) under the provisions of Article 15 of the Uniform Code of
Military Justice (UCMJ), and a special court-martial (SPCM) conviction.
5.  On 17 January 1966, a SPCM convicted the applicant of violating Article
86 of the UCMJ by being AWOL from on or about 11 December 1965 through on
or about 7 January 1966.  The resultant sentence included confinement at
hard labor for six months and a forfeiture of $60.00 per month for six
months.

6.  The applicant’s Military Personnel Record Jacket (MPRJ) is void of a
separation packet containing the specific facts and circumstances
surrounding his separation processing.  The record does include a
separation document
(DD Form 214) that shows he was separated with an UD on 7 March 1966.

7.  The DD Form 214 shows the applicant was separated under the provisions
of Army Regulation 635-208, for unfitness (frequent incidents of
discreditable service).  This document further shows that at the time of
his discharge, he had completed 1 year, 4 months and 2 days of creditable
active military service and had accrued 27 days of time lost due to AWOL.

8.  On 13 September 1966, the Army Discharge Review Board (ADRB), after
careful consideration of his military records and all other available
evidence, determined the applicant had been properly discharged and that
his request for a change in the type and nature of his discharge was
denied.

9.  Army Regulation 635-208, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  It provided for the
separation of members for unfitness based on frequent incidents of
discreditable service.  An UD was normally considered appropriate.

10.  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 Board 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’s contention that while he went AWOL, it was never his
intention to desert was carefully considered.  However, this factor is not
sufficiently mitigating to warrant the requested relief.

2.  The applicant’s record is void of the specific facts and circumstances
surrounding the applicant’s 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.  Absent evidence to the contrary, it is concluded that the applicant’s
separation processing was accomplished in accordance with the applicable
regulation.  All requirements of law and regulation were met and the rights
of the applicant were fully protected throughout the separation process.
Further, the applicant’s UD accurately reflects his overall record of
undistinguished service.

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 exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 16 September 1966.  As
a result, the time for him to file a request for correction of any error or
injustice to this Board expired on 15 September 1969.  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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___AMC_  ___MVT _  ___JEV _  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.




            ____James V. Vick  _____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040004288                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/04/14                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1966/03/07                              |
|DISCHARGE AUTHORITY     |AR 635-208                              |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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