RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        04 AUGUST 2005
      DOCKET NUMBER:  AR20040008412


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Mr. Richard Dunbar                |     |Member               |
|     |Ms. LaVerne Douglas               |     |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 discharge under other than
honorable conditions be upgraded so he can receive medical benefits.  He
also notes that his separation document says nothing about his honorable
discharge from the National Guard, when he was drafted, or the one
honorable discharge he had when he reenlisted.  He also notes that his 3
years of service in Germany is not recorded.

2.  The applicant states in effect, that he had a collapsed lung while in
the Army and that his separation document has a lot of things missing.  He
states he would like to have his medical records for civilian use.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 15 February 1968.  The application submitted in this case
is dated
2 October 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 military personnel file was not available to the Board.
 However, a copy of the file maintained on him while he was in confinement
following conviction by a special court-martial in 1966 was available and
provided sufficient information to reconstruct details of his military
service and for the Board to conduct a fair and impartial review of this
case.

4.  Documents in those files indicate that the applicant enlisted in the
National Guard in November 1959 and was discharged in May 1961 for failing
to attend drill.  In spite of the basis for his discharge from the National
Guard he did receive an honorable discharge from that component.  On 17 May
1961, following his discharge from the National Guard, the applicant was
inducted and entered active duty.
5.  In June 1962 the applicant was reassigned to an artillery unit in
Germany.  He was discharged for the purpose of immediate reenlistment on 15
September 1964.  A copy of the separation document, which would have
captured information regarding the applicant’s period of active service
between 17 May 1961 and 15 September 1964, was not in files available to
the Board.

6.  On 16 September 1964, while still in Germany, the applicant enlisted in
the Regular Army.  He returned to the United States approximately 9 months
later on 4 June 1965.

7.  His confinement file indicates that while in Germany, the applicant was
convicted by one summary court-martial for failure to repair and was
punished six times under Article 15 of the Uniform Code of Military Justice
for a variety of infractions including missing bed check, failing to be at
his appointed place of duty, and insubordination.  He was also promoted and
reduced several times.

8.  Shortly after returning to the United States the applicant departed
AWOL and was subsequently convicted by a special court-martial in September
1965.

9.  By January 1966 he again departed AWOL and in June 1966 was convicted
by a special court-martial for his period of AWOL between January 1966 and
March 1966.  The court-martial sentence included confinement at hard labor.
 While in confinement, the applicant appeared before a board of officers
which recommended that he not be restored to duty following completion of
his confinement period and that he be administratively discharged under the
provisions of Army Regulation 635-212 for unfitness or unsuitability.  In
spite of the board’s recommendation, the applicant was ultimately returned
to duty in January 1966.

10.  Documents associated with the applicant’s administrative separation
were not in files available to the Board.  However, his 1968 separation
documents indicate that the applicant was AWOL again between July 1967 and
February 1968 and that on 15 February 1968 he was discharged under
conditions other than honorable under the provisions of Army Regulation 635-
212 and issued an undesirable discharge certificate.

11.  His 1968 separation document indicates that he had 1 year, 6 months,
and 13 days of creditable service between 16 September 1964 and 15 February
1968 and nearly 700 days of lost time due to AWOL and confinement.  His
prior periods of military service, including his service in the National
Guard and during his initial period of active Federal service between May
1961 and September 1964 was captured in item 23a(2) (other service) on his
1968 separation document.

12.  Army Regulation 635-5, which provides the policies and procedures for
the preparation of separation document indicates that the separation
document is a summary of a Soldier’s most recent period of continuous
active duty.  It provides a brief, clear-cut record of active duty service
at the time of release from active duty, retirement, or discharge.

13.  Item 23c (foreign and/or sea service) reflects the applicant’s 8
months and 27 days of service in Germany that occurred during the period of
service captured by his February 1968 separation document.

14.  Army Regulation 635-212, in effect at the time, set forth the basic
authority for the administrative separation of enlisted personnel.  It
provided for the separation for unfitness as a result of a variety of
situations, including frequent incidents of a discreditable nature with
civil or military authorities; 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.  When separation for
unfitness was warranted an undesirable discharge was normally considered
appropriate.

15.  There were no medical records available to the Board.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence, and the applicant has not provided any, that his
discharge was conducted unfairly or that it was unjust.  In the absence of
such evidence, there is no basis to upgrade the character of his discharge.


2.  The evidence, which is available, indicates that the applicant had
multiple disciplinary infractions and was convicted by at least three
courts-martial.  When given an opportunity to return to duty following a
period of confinement, he again absented himself at which time he was
administratively discharged.  Based on the applicant’s record of misconduct
and inability to serve honorably when given the opportunity to do so is
evidence that his separation under other than honorable conditions was
warranted.



3.  The fact that the applicant may have previously served honorably is not
evidence that his final discharge should be upgraded, but rather serves as
evidence that the applicant was capable of honorable service.  His desire
to receive medical benefits is also not a basis to upgrade the
characterization of his 1968 discharge.

4.  The applicant’s 1968 separation document does capture the applicant’s
prior service in the National Guard and his initial service on active duty.
 While he may have served in Germany for a period of 3 years, only 8 months
and 27 days of that service occurred following the applicant’s September
1964 reenlistment action.  His 1968 separation document would not have
reflected his entire tour of duty in Germany.  His 1968 separation document
accurately reflects information about the applicant’s military service and
no corrections are necessary.

5.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 February 1968; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
14 February 1971.  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

___JA  __  ___RD __  ___LD __  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 Anderholm______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040008412                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050804                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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