RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          21 July 2005
      DOCKET NUMBER:  AR20040011429


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Mr. Robert Osborn                 |     |Member               |
|     |Ms. Brenda Koch                   |     |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, in effect, that he was young and did not know
better and that he was informed that after two years his discharge would
automatically be upgraded.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 1 January 1970.  The application submitted in this case is
dated 9 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 was born on 12 April 1951.  He enlisted on 30 August 1968
for a period of 2 years.  He successfully completed basic combat training.
While in advanced individual training (AIT), on 27 November 1968,
nonjudicial punishment was imposed against the applicant for failure to
repair.  His punishment consisted of a forfeiture of pay, restriction, and
extra duty.

4.  On 13 January 1969, while in AIT, nonjudicial punishment was imposed
against the applicant for being absent without leave (AWOL) for one day.
His punishment consisted of a forfeiture of pay.

5.  On 17 January 1969, while in AIT, in accordance with his pleas, the
applicant was convicted by a summary court-martial of wearing a corporal
insignia on his uniform without authority and disobeying a lawful order.
He was sentenced to forfeit $75 per month for one month.  On 18 January
1969, the convening authority approved the sentence.  On 20 February 1969,
the findings of guilty of charge II and its specification (disobeying a
lawful order) and forfeiture of $40 per month for one month were set aside.



6.  The applicant completed AIT in military occupational specialty 11B
(light weapons infantryman).

7.  On 28 July 1969, nonjudicial punishment was imposed against the
applicant for being AWOL for one day and disobeying a lawful order.  His
punishment consisted of a forfeiture of pay and restriction.

8.  On 20 August 1969, in accordance with his pleas, the applicant was
convicted by a summary court-martial of being AWOL from 11 August 1969 to
15 August 1969 and possessing a false pass.  He was sentenced to be reduced
to E-1, to forfeit $50 per month for one month and to be restricted for 60
days.  On
20 August 1969, the convening authority approved the sentence.

9.  On 29 August 1969, in accordance with his pleas, the applicant was
convicted by a summary court-martial of being AWOL for 12 hours and
treating two superior noncommissioned officer with contempt.  He was
sentenced to forfeit $80 per month for one month and to be confined at hard
labor for 30 days.  On 29 August 1969, the convening authority approved the
sentence.

10.  The facts and circumstances surrounding the applicant’s discharge are
not contained in the available records.  However, the applicant's DD Form
214 (Report of Transfer or Discharge) shows that he was discharged with an
undesirable discharge on 1 January 1970 under the provisions of Army
Regulation 635-212 for unfitness due to frequent incidents of a
discreditable nature with civil or military authorities.  He had served 1
year, 2 months and 25 days of creditable active service with 37 days of
lost time due to AWOL and confinement.

11.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge within its 15-year statute of
limitations.

12.  Army Regulation 635-212, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  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.

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 (emphasis
added), 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.  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.

15.  The U.S. Army does not have, nor has it ever had, a policy to
automatically upgrade discharges.  Each case is decided on its own merits
when an applicant requests a change in discharge.  Changes may be warranted
if the Board determines that the characterization of service or the reason
for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  Age is not a sufficiently mitigating factor.  Although the applicant
was 17 years old when he enlisted, he successfully completed basic combat
training.

2.  A discharge upgrade is not automatic.

3.  The applicant’s record of service included three nonjudicial
punishments, three summary court-martial convictions, and 37 days of lost
time.  As a result, his record of service was not satisfactory and did not
meet the standards of acceptable conduct and performance of duty for Army
personnel.  Therefore, the applicant's record of service is insufficiently
meritorious to warrant a general discharge or an honorable discharge.

4.  In the absence of evidence to the contrary, it must be presumed that
the applicant’s discharge under the provisions of Army Regulation 635-212
for unfitness was administratively correct and in conformance with
applicable regulations.

5.  The type of discharge directed and the reasons for separation were
appropriate considering his record of service.

6.  Records show the applicant should have discovered the alleged injustice
now under consideration on 1 January 1970; therefore, the time for the
applicant to file a request for correction of any injustice expired on 31
December 1973.  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

JI______  RO______  BK______  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.




            __John Infante________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040011429                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050721                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19700101                                |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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