RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          9 August 2005
      DOCKET NUMBER:  AR20040009815


      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. Richard P. Nelson             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Barbara J. Ellis              |     |Chairperson          |
|     |Mr. Kenneth L. Wright             |     |Member               |
|     |Mr. Patrick H. McGann Jr.         |     |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 two separate DD Forms 149, that his
undesirable discharge be upgraded to a general discharge, under honorable
conditions.

2.  The applicant states that he was young and naïve, the Army did not give
him the Military Occupational Specialty he was promised, and he had a
sergeant who was a drunk and harassed him all the time.  He also feels that
since President Gerald Ford gave a conditional amnesty to Vietnam War
deserters and draft-evaders, that he (applicant) should get the same
consideration.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge) and a one page, self-
authored synopsis of his service while on active duty.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error that
occurred on 13 September 1967.  The applications submitted in this case are
dated 20 October 2004 and 15 February 2005.

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 military records show that he enlisted in the Regular
Army on 14 February 1966 for 3 years and trained in Military Occupational
Specialty 76C10, Engineer Supply/Parts Specialist.  The applicant served at
Forts Lee and Belvoir in Virginia until being discharged from the Army for
unfitness, under other than honorable conditions, on 13 September 1967 in
pay grade E-1.

4.  Between 7 July and 8 September 1966, the applicant accepted nonjudicial
punishment under Article 15, Uniform Code of Military Justice, on three
separate occasions for: being absent without leave; using reproachful
language to a superior noncommissioned officer; and, disobeying a lawful
order.

5.  On 4 November 1966, the applicant was convicted by a Special Court-
Martial of larceny, willfully damaging government property, and assaulting
a superior noncommissioned officer.  His sentence consisted of confinement
at hard labor for 4 months and a forfeiture of $64.00 per month for 6
months.  The sentence was adjudged on 4 November 1966 and approved on 10
November 1966.

6.  On 13 March 1967, the applicant was dropped from the rolls of the Army
as a deserter.  When he was returned to a duty status on 24 March 1967, he
was assigned to a special processing detachment and was reclassified from a
engineer supply/parts specialist to MOS 57A, duty Soldier.

7.  On 20 July 1967, the applicant’s commander recommended that the
applicant be eliminated from the service under the provisions of Army
Regulation 635-212 (Unfitness).  The commander determined that other
disposition was not considered feasible or appropriate because “further
duty of the individual will create a hazard to the military mission or to
the individual.”  The commander further stated that the applicant’s primary
problem is “total lack of motivation” and that the applicant was “trying to
render himself unfit for further service.”  An undesirable discharge was
recommended.  The applicant was advised of the elimination action and
elected to waive board appearance.  He also waived representation by
counsel and elected to not submit statements in his own behalf.  He
indicated that he understood he could be discharged under other than
honorable conditions and furnished an Undesirable Discharge Certificate;
that he may be ineligible for many or all benefits administered by the
Department of Veterans Affairs; and that he may be deprived of his rights
and benefits as a veteran under both Federal and State law.  He also
acknowledged that he may expect to encounter substantial prejudice in
civilian life because of an undesirable discharge.

8.  On 18 August 1967, the separation authority approved the recommendation
for administrative elimination action, waived further counseling and
rehabilitation requirements, and directed that the applicant be discharged
under the provisions of Army Regulation 635-212, by reason of unfitness.
The separation authority further directed that the applicant be furnished
an Undesirable Discharge Certificate.

9.  Accordingly, the applicant was discharged under other than honorable
conditions on 13 September 1967 in pay grade E-1.  His DD Form 214 shows
that he had completed 1 year, 2 months and 22 days of active service and
had 129 days of lost time.

10.  Army Regulation 635-212, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  Paragraph 6a(1) of the
regulation provided, in pertinent part, that members involved in frequent
incidents of a discreditable nature with civil or military authorities were
subject to separation for unfitness.  A discharge under other than
honorable conditions was normally considered appropriate. However, at the
time of the applicant's separation, the regulation provided for the
issuance of an Undesirable Discharge Certificate.

11.  On 21 October 1980 the Army Discharge Review Board (ADRB) reviewed and
denied the applicant’s request for an upgrade of his discharge.

12.  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.

13.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.  Whenever there is doubt, it is to be resolved in favor of
the individual.

14.  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 Army Discharge Review Board (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
Army Board for Correction of Military Records (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 discharge proceedings were conducted in accordance with law and
regulations applicable at the time.  In view of the applicant’s offenses,
it does not appear that his undesirable discharge was too harsh.

2.  The applicant’s entire record of service was considered.  There is no
record or documentary evidence of acts of valor, achievement, or service
that would warrant special recognition.

3.  The reason for discharge and the characterization of service were both
proper and equitable.  Further, the quality of the applicant’s service did
not meet the standards of acceptable conduct and performance expected of
Army personnel; therefore, the applicant is not entitled to an upgrade of
his undesirable discharge to general or fully honorable.

4.  The applicant's contention that the Army did not give him the Military
Occupational Specialty he was promised is not supported by the evidence of
record.  The applicant was trained in and awarded the MOS of engineer
supply/parts specialist.  His MOS was only changed to duty Soldier when he
was returned to duty from being AWOL and assigned to a special processing
detachment.

5.  The applicant did not submit any evidence that he had a sergeant who
was a drunk and harassed him all the time, nor does the applicant’s record
contain any evidence which would support this allegation.

6.  The evidence clearly shows that the misconduct for which he was cited
amounted to simple issues such as disobeying orders and refusing to do
simple tasks required of him.  He also displayed a repeated lack of respect
for authority. Accordingly, there is no basis to upgrade his discharge.

7.  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 this requirement.

8.  In view of the foregoing, there is no basis for granting the
applicant's request.

9.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 21 October 1980; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 20 October 1983.  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

___klw __  ___phm__  ___bje__  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.




            _________Barbara J. Ellis________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040009815                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050809                                |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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