RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          29 March 2005
      DOCKET NUMBER:  AR20040007861


      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. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Ms. Susan A. Powers               |     |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 general discharge (GD) under honorable
conditions be upgraded to a fully honorable discharge.

2.  The applicant states that he left his unit in an absent without leave
AWOL status because his wife tried to harm herself on three separate
occasions after they lost their baby.  The applicant also states that he
was advised his GD would be upgraded to a fully honorable discharge after
he had been separated for 1 year.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
24 February 1972.  The application submitted in this case is dated 21 May
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.  On 27 May 1971, the applicant enlisted in the Regular Army for 3 years
and training in military occupational specialty (MOS) 67N (Aircraft
Maintenance).  He completed basic combat training and he was assigned to
Fort Eustis, Virginia for completion of training in MOS 67N.  He never
completed the training and he was never awarded the MOS.

4.  On 19 January 1972, the applicant was convicted by a special court-
martial (SPCM) of being AWOL from his unit from 3-29 November 1971.  He was
sentenced to a forfeiture of $80.00 per month for 3 months and to reduction
from pay grade E-3 to pay grade E-2.

5.  On 31 January 1972, nonjudicial punishment (NJP) under the provisions
of Article 15, Uniform Code of Military Justice (UCMJ), was imposed against
the applicant for failure to go to his appointed place of duty at the time
prescribed on 21 January 1972; for breaking restrictions on 28 January
1972; and for failure to go to his appointed place of duty at the time
prescribed on 31 January 1972.  His punishment included 14 days of extra
duty and restriction, and a forfeiture of $57.00 pay for 1 month.
6.  On 1 February 1972, as part of the separation process, the applicant
underwent a mental status evaluation by a professionally trained
psychiatrist.  His behavior was normal; he was fully alert; fully oriented;
his mood was level; his thought process was clear; his thought content was
normal and his memory was good.  He demonstrated no significant mental
illness.  He was determined to be mentally responsible and capable of
distinguishing right from wrong and able to adhere to the right.  He had
the mental capacity to understand and participate in board proceedings.  He
was also determined to meet retention standards.
On the same date, a medical examination determined the applicant was
qualified for separation.

7.  On 1 February 1972, the applicant’s commander notified him that he was
being recommended for separation under the provisions of Army Regulation
635-212, for unsuitability.

8.  On 10 February 1972, NJP was imposed against the applicant for being
AWOL from his unit from 8 to 9 February 1972. His punishment included 14
days of extra duty and restriction and a forfeiture of $55.00 pay for 1
month.

9.  The applicant's commander recommended that a board of officers convene
to determine whether the applicant should be separated prior to the
expiration of his term of service under the provisions of Army Regulation
635-212, due to unsuitability.  The commander cited the reasons for the
recommendation were the applicant's inaptitude and apathy.  He was an
habitual offender of minor infractions involving misconduct without
demonstrating rehabilitation potential.  He required constant supervision
because of his inability to expend his efforts constructively.  He was
constantly tardy for formations and demonstrated an indifferent attitude
while performing his duties.  He had been counseled by both the commander
and the first sergeant on several occasions to no avail.

10.  On 11 February 1972, the applicant consulted with legal counsel.  He
acknowledged that he had been advised of the basis for the contemplated
action and its effects, and the rights available to him.  He also stated
that he understood the consequences of receiving a discharge that was other
than fully honorable.  He waived further representation by legal counsel
and a personal appearance before a board of officers.  The available record
does not contain a statement submitted by the applicant.

11.  On 16 February 1972, the intermediate commander recommended approval
with a GD.  On 17 February 1972, competent authority waived further
rehabilitation requirements, approved the recommendation for separation and
directed the issuance of a GD under the provisions of Army Regulation 635-
212 for unsuitability.
12.  On 24 February 1972, the applicant was discharged under the provisions
of
Army Regulation 635-212, by reason of unsuitability with a GD.  He had
completed 7 months and 25 days of creditable active military service.  He
also had 25 days of lost time due to being AWOL and 6 days of lost time due
to reasons that are unspecified.

13.  Army Regulation 635-212, then in effect, set forth the policy and
procedures for administrative separation of enlisted personnel for
unfitness and unsuitability. It provided, in pertinent part, for discharge
due to unsuitability because of apathy of those individuals who displayed a
lack of appropriate interest and/or an inability to expend effort
constructively.  When separation for unsuitability was warranted an
honorable or GD was issued as determined by the separation authority based
upon the individual's entire record.

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.  There is nothing in the applicant’s records and he has provided nothing
that mitigates his behavior.  The applicant had many legitimate avenues
(e.g., chain of command, chaplain) through which to seek relief for his
personal problems without committing the misconduct that led to his
separation.

4.  The United States Army does not have, nor has it ever had, a policy to
automatically upgrade a discharge or to accept a request for the upgrade of
a discharge after a certain amount of time.  Each case is decided on its
own merits when an applicant submits a DD Form 149 (Application for
Correction of Military Record) requesting a change in discharge.  Changes
may be warranted if the evidence supports that the characterization of
service, or the reason(s) for discharge, or both, were improper or
inequitable.  The applicant has provided no evidence to support either.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 24 February 1972; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on



23 February 1975.  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

___mhm__  __phm___  __sap___  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.


                                  Melvin H. Meyer
                             ______________________
                                     CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040007861                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050329                                |
|TYPE OF DISCHARGE       |(GD)                                    |
|DATE OF DISCHARGE       |19720224                                |
|DISCHARGE AUTHORITY     |AR635-212                               |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0135                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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