RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 August 2005
      DOCKET NUMBER:  AR20040011425


      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. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Vick                    |     |Chairperson          |
|     |Mr. Ronald 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 that his undesirable discharge be upgraded.

2.  The applicant states that he has been exposed to Agent Orange and has
been diagnosed with multiple sclerosis, diabetes, high blood pressure,
prostate cancer and problems with his legs.  He states that a psychiatrist
evaluated him while he was in Vietnam and determined that he should go
home.

3.  The applicant provides no documents in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 12 September 1969.  The application submitted in this case is
dated 17 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 enlisted in the Regular Army on 10 January 1966 for a
period of four years.  He completed basic combat training and advanced
individual training and was assigned to Vietnam as a wheeled vehicle
mechanic on 24 July 1966.

4.  During the period 12 October 1966 through 7 September 1967, the
applicant accepted nonjudicial punishments seven times under Article 15,
Uniform Code of Military Justice for being absent from his place of duty on
two occasions; for being derelict in the performance of his duties; for
being disrespectful in language and deportment toward his superior
noncommissioned officer on two occasions; for operating a jeep in a
reckless manner; and for failing to go to his appointed place of duty on
two occasions.

5.  The applicant departed Vietnam in February 1968 and was reassigned to
Fort Ord, California.

6.  On 26 April 1968, the applicant was convicted by a special court-
martial of being absent without leave (AWOL) from 24 March 1968 to 11 April
1968, for disobeying a lawful order from his superior officer and for
disobeying a lawful order from his superior noncommissioned officer.  He
was sentenced to confinement at hard labor for 6 months (suspended for 6
months) and a forfeiture of $90.00 pay per month for 6 months.

7.  On 26 November 1968, he was convicted by a special court-martial of
being AWOL from 19 August 1968 to 19 November 1968.  He was sentenced to
confinement at hard labor for 6 months and a forfeiture of $97.00 pay per
month for 6 months.

8.  On 28 May 1969, the applicant was convicted by a special court-martial
of being AWOL from 22 February 1969 to 15 May 1969.  He was sentenced to
confinement at hard labor for 4 months, a forfeiture of $97.00 pay per
month for 2 months and a reduction to private E-1.

9.  The applicant underwent a psychiatric examination on 30 July 1969.  The
report of his psychiatric evaluation indicated that during his second
period of AWOL he spent 30 days in confinement for a charge of hit and run.
 He was diagnosed as having no neurotic, psychotic or organic brain
disorder.  The psychiatrist stated that the applicant had no disqualifying
mental disability which warranted his separation through medical channels.
The psychiatrist also stated that the applicant was free from mental
defect, disease or derangement and was able to both distinguish right from
wrong and to adhere to the right, and to understand and to cooperate in
board proceedings.  The psychiatrist recommended that the applicant be
separated under the provisions of Army Regulation 635-212.

10.  On 11 August 1969, the applicant's unit commander notified him of
initiation of separation action under the provisions of Army Regulation 635-
212, paragraph 6a(1) for unfitness.  The applicant was advised of his
rights.  He consulted with legal counsel, waived consideration of his case
by a board of officers and did not submit statements in his own behalf.

11.  On 13 August 1969, the unit commander recommended that the applicant
be discharged for unfitness rather than for unsuitability because of the
applicant's record of 3 special courts-martial, 2 (sic) Article 15s and 3
periods of AWOL.  The unit commander stated that the applicant's behavior
was intentional and not due to an incapacity within the meaning of
unsuitability.

12.  On 2 September 1969, the separation authority directed the separation
action under the provisions of Army Regulation 635-212 for unfitness -
frequent incidents of a discreditable nature with civil or military
authorities with issuance of an Undesirable Discharge Certificate.
13.  On 12 September 1969, the applicant was discharged from active duty.
He completed 2 years, 7 months and 14 days of creditable active service
with 384 days of lost time due to AWOL and confinement.

14.  On 24 May 1977, the Army Discharge Review Board (ADRB) upgraded the
applicant's undesirable discharge to a general under honorable conditions
discharge under the Special Discharge Review Program.  The upgraded
discharge was not affirmed.

15.  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.  An undesirable discharge was normally
considered appropriate.

16.  Presidential Proclamation 4313 dated 16 September 1974 was issued by
President Ford and affected three groups of individuals.  One group was
prior members of the Armed Forces who had been discharged with a punitive
or undesirable discharge for violation of Articles 85, 86 or 87 (desertion,
AWOL, and missing movement, respectively) of the Uniform Code of Military
Justice.  This group could apply to a Presidential Clemency Board which was
made up of individuals appointed by the President (members were civilians,
retired military and members of the Reserve Components) who would establish
a period of alternate service of not more than 24 months that the
individuals would perform.  If they completed the alternate service
satisfactorily, they would be entitled to receive a Clemency Discharge.
The Presidential Board was authorized to award a Clemency Discharge without
the performance of alternate service (excusal from alternate service).  The
Clemency Discharge did not affect the underlying discharge and did not
entitle the individual to any benefits administered by the Veterans
Administration (VA).

17.  Public Law 95-126 provided in pertinent part for a “Relook Program.”
All cases upgraded from under other than honorable conditions under the
Special Discharge Review Program or extension to Presidential Proclamation
4313 had to be relooked and affirmed or not affirmed under uniform
standards.  Two of the principal features of Public Law 95-126 were:  (1)
the addition of 180 days of continuous unauthorized absence to other
reasons (e.g., conscientious objector, deserters) for discharge which act
as a specific bar to eligibility for Veterans Administration (VA) benefits.
 Such absence must have been the basis for discharge under other than
honorable conditions and is computed without regard to expiration of term
of service.

18.  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 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.

19.  Army Regulation 635-200 governs the separation of enlisted personnel.
In pertinent part, it states that an honorable discharge is a separation
with honor.  The honorable characterization is appropriate when the quality
of the Soldier'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.
 Where there have been infractions of discipline, the extent thereof should
be considered, as well as the seriousness of the offense(s).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation under the provisions of Army
Regulation 635-212 based on unfitness, frequent incidents of a
discreditable nature with civil or military authorities was accomplished in
compliance with applicable regulations at that time.  There is no
indication of procedural errors which would tend to jeopardize his rights.

2.  The applicant waived his right to a hearing before a board of officers
and did not submit statements in his behalf.

3.  The applicant's record of service shows he received seven Article 15s
and three special courts-martial and was AWOL on three separate occasions
for over 100 days.

4.  Records show the ADRB upgraded the applicant's undesirable discharge to
a general under honorable conditions discharge under the Special Discharge
Review Program; however, that discharge upgrade was not affirmed.

5.  The applicant's service did not meet the standards of honorable service
as defined in Army Regulation 635-200.  Therefore, the characterization of
the discharge is appropriate considering all the facts of the case.  There
also is no apparent error, injustice, or inequity on which to base
recharacterization of his discharge to honorable.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 24 May 1977, the date of the ADRB
review; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 23 May 1980.  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

JV______  RW______  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 Vick____________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011425                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050818                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19690912                                |
|DISCHARGE AUTHORITY     |AR635-212                               |
|DISCHARGE REASON        |Unfitness-frequent incidents of a       |
|                        |discreditable nature with civil or      |
|                        |military authorities                    |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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