RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 August 2005
      DOCKET NUMBER:  AR20040010503


      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. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Mr. Ronald J. Weaver              |     |Member               |
|     |Mr. Robert Rogers                 |     |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 be upgraded to a
general discharge under honorable conditions.

2.  The applicant provides no additional documents in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 8 December 1969.  The application submitted in this case
is dated
1 December 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.  The applicant’s record shows he enlisted in the Army on 7 August 1968.
He was trained in and awarded military occupational specialty 11B10 (Light
Weapons Infantryman) and the highest rank he attained while serving on
active duty was private first class (PFC).

4.  On 6 December 1968, while assigned to a unit at Fort Polk, Louisiana,
the applicant accepted nonjudicial punishment (NJP) for leaving his
appointed place of duty without proper authority.  His imposed punishment
was 14 days restriction and 14 days extra duty.

5.  On 16 January 1969, the applicant accepted NJP for being absent without
leave from 5 to 8 January 1969.  His imposed punishment was a forfeiture of
$50.00 pay per month for 2 months.

6.  On 19 July 1969, the applicant was convicted by a special court-martial
of disobeying a lawful order from a superior commissioned officer.  He was
sentenced to confinement at hard labor for 6 months (suspended), a
reduction to pay grade E-1 and to forfeit $82.00 of pay per month for 6
months.

7.  Between 9 September and 6 November 1969, the applicant was formally
counseled on 12 separate occasions for an established pattern of shirking
and poor duty performance.

8.  On 7 November 1969, the applicant was examined by a psychiatrist and
was found mentally competent to withstand board judicial proceedings and
meet retention standards.

9.  On 7 November 1969, the applicant received notification to appear
before a board of officers convened under the provisions of Army Regulation
635-212, for the purpose of determining whether he should be discharged
before his expiration of his term of service.  The discharge was
recommended because of the applicant’s habits and traits of character
manifested by repeated commission of petty offenses and established pattern
of shirking and frequent incidents of a discreditable nature with military
authorities.

10.  On 20 November 1969, the applicant consulted with legal counsel and
after being advised of the basis for the contemplated separation, its
effects and the rights available to him, he waived his right to
consideration of his case by a board of officers, personal appearance
before a board of officers and his right to counsel.  He further elected
not to make a statement in his own behalf.

11.  On 3 December 1969, the separation authority approved the
recommendation for discharge under the provisions of Army Regulation 635-
212, for unfitness and that he receive an Undesirable Discharge
Certificate.  On
8 December 1969, the applicant was discharged accordingly.  The separation
document (DD Form 214) he was issued at the time, confirms he completed a
total of 1 year, 2 months and 24 days of creditable active military service
and accrued a total of 37 days of time lost.

12.  On 4 August 1977, after finding his discharge was proper and
equitable, the Army Discharge Review Board (ADRB) denied the applicant’s
request for an upgrade of his discharge.

13.  Army Regulation 635-212, in effect at the time, set forth the basic
authority, established the policy, and prescribed the procedures for
separating members for unfitness.  An undesirable discharge was normally
considered appropriate for members separating under these provisions.

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 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 evidence of record confirms the applicant was notified of the
contemplated separation action by his unit commander and that he consulted
with legal counsel.  It further shows that after being advised of the basis
for the contemplated separation action and its possible effects, he
voluntarily elected to waive his right to have his case considered by a
board of officers and he elected not to submit a rebuttal statement in his
own behalf.

2.  The record further confirms that all requirements of law and regulation
were met; the rights of the applicant were fully protected throughout the
separation process.  Finally, the record shows the character of the
applicant’s discharge accurately reflects his overall record of
undistinguished service.

3.  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.

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 4 August 1977.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 3 August 1980.  However, he 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 file in this case.






BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JEV __  __RJW __  ___RR __  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 E. Vick_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010503                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050818                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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