RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 September 2005
      DOCKET NUMBER:  AR20040010719


      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. Stanley Kelley                |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Richard T. Dunbar             |     |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.

2.  The applicant states, in effect, that he was tired of going overseas
and he was going through a divorce.  He states, that he went overseas four
times out of six years of military service.

3.  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, which occurred on 16 December 1971, the date he was separated
from active duty.  The application submitted in this case is dated 2
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 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 and
entered active duty on 31 March 1965, for a period of 3 years.  He was
trained in, awarded and served in military occupational specialty (MOS)
11B10 (Light Weapons Infantryman).  The applicant served in the Republic of
Korea from
27 February to 26 September 1967.  On 27 April 1967, the applicant was
honorably discharged after serving 2 years and 27 days of active duty
service.  The highest rank he attained during this enlistment was pay grade
E-3.  He was awarded the National Defense Service Medal.

4.  On 28 April 1967, the applicant immediately reenlisted for 6 years.
The applicant’s record indicates that on 8 December 1967, he was promoted
to sergeant pay grade E-5.

5.  On 5 March 1969, while assigned to a unit at Fort Campbell, Kentucky,
the applicant was convicted by a Special Court-Martial of having knowledge
of a lawful regulation dated 20 February 1968, an order which it was his
duty to obey, failed to obey the same by accepting monies from numerous
members from Company D, in return for a chance to be taken off post for the
purpose of having a good time.  He was sentenced to confinement at hard
labor for 6 months, and a forfeiture of $97.00 pay per month for 6 months.
The sentence was approved but that portion thereof adjudging confinement at
hard labor for 6 months was suspended for 6 months and the unexecuted
portion of the approved sentence to forfeit $97.00 pay was modified to
$70.00 pay, which was then suspended for
6 months vacated and remitted without further action.

6.  On 15 April 1970, the applicant was discharged after serving 2 years,
11 months and 18 days of honorable service.  The highest grade he attained
during this enlistment period was pay grade E-5.  He was also awarded the
Vietnam Service Medal, the Vietnam Campaign Medal with Device 60, the Good
Conduct Medal (31 March 1965 - 27 April 1967), and two Overseas Bars.

7.  On 16 April 1970, the applicant was allowed to reenlist for 6 years.
(The period of active duty service in question).  On 22 June 1970, the
applicant was assigned to a unit in Germany.

8.  On 19 February 1971, the applicant accepted nonjudicial punishment, for
wrongfully appearing at the guard mount without proper uniform and
accouterments.  His imposed punishment was a forfeiture of $35.00 pay, 7
days restriction and 7 days extra duty.

9.  On 28 September 1971, the applicant was convicted by a Special Court-
Martial of three specifications of failure to go at the prescribed time to
his appointed place of duty and two specifications of disobeying a lawful
order.  He was sentenced to confinement at hard labor for 2 months, a
reduction to pay grade E-1 and a forfeiture of $75.00 pay per month for 6
months.  (One previous conviction was considered).

10.  The facts and circumstances pertaining to the applicant’s discharge
proceedings are not in his Military Personnel Records Jacket (MPRJ).
However, the MPRJ does contain a separation document (DD Form 214) that
contains the authority and reason for his discharge.  The applicant
authenticated this document with his signature indicating he was discharged
under the provisions of Army Regulation 635-212, the character of service
was Under Conditions Other Than Honorable and that the reason for discharge
was Unfitness.

11.  On 16 December 1971, the applicant received an Undesirable Discharge
after completing 1 year, 5 months, and 21 days of active military service
during this enlistment and 6 years, 6 months and 6 days of total active
service.
12.  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.

13.  There is no indication that the applicant applied to the Army
Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-
year statute of limitations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record is void of the specific facts and circumstances
surrounding his separation 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.

2.  The applicant’s contentions that he was tired of going overseas and
that he was going through a divorce was carefully considered and found to
be insufficient evidence to support granting the relief requested in this
case.  There was no evidence in his record nor did the applicant provide
any evidence in support of his allegation.  Therefore, given the
circumstances in this case and his overall record of service, there is
insufficient evidence to support his request at this time.

3.  In the absence of any evidence of record or independent evidence to the
contrary, it is concluded that 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 discharge accurately reflects
his overall record of 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 should have discovered the alleged error or
injustice now under consideration on 16 December 1971, therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
15 December 1974.  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

___SK __  __BJE  __  __RTD __  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.




                                  _____ Stanley Kelley_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010719                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050901                                |
|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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