RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 July 2005
      DOCKET NUMBER:  AR20040011536


      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:

|     |Ms. Linda Simmons                 |     |Chairperson          |
|     |Mr. Patrick McGann                |     |Member               |
|     |Mr. Leonard Hassell               |     |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 the periods of AWOL from 16
March 1970 to 16 March 1970 and 21 March 1970 to 24 March 1970 be removed
from his DD Form 214 (Armed Forces of the United States Report of Transfer
or Discharge).  He also requests, in effect, that his undesirable discharge
be upgraded.

2.  The applicant states that he was in the stockade at Fort Belvoir,
Virginia during this time.

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 13 May 1971.  The application submitted in this case is dated
15 November 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 28 August 1967 for a
period of three years.  He completed basic combat training and advanced
individual training and was awarded military occupational specialty 63A
(Engineer Equipment Assistant).  He was honorably discharged from active
duty on 6 May 1968 for the purpose of immediate reenlistment.

4.  The applicant reenlisted on 7 May 1968 and was assigned to Thailand.
He was promoted to specialist four (SP4) on 25 February 1969.

5.  On 14 October 1969, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice for being AWOL from 9 October
1969 to 14 October 1969.  His punishment consisted of a reduction in grade
from SP4, E-4 to private first class, E-3 (to be suspended for 30 days) a
forfeiture of $50.00 pay for a period of one month, fourteen days extra
duty and 14 days restriction.

6.  On 18 April 1970, the applicant was convicted by a special court-
martial of being AWOL on three separate occasions from 9 December 1969 to 4
March 1970, from 16 March 1970 to 17 March 1970 and from 21 March 1970 to
25 March 1970.  He was sentenced to reduction to the grade of private E-1,
confinement at hard labor for one month and a forfeiture of $75.00 pay per
month for 2 months.  The sentence was approved on 4 May 1970 and the
applicant was confined in the Post Stockade at Fort Belvoir, Virginia from
26 March 1970 to 11 May 1970.

7.  On 14 January 1971, the applicant was convicted by a special court-
martial of being AWOL from 1 June 1970 to 3 December 1970.  He was
sentenced to confinement at hard labor for 120 days, a forfeiture of
$100.00 pay per month for 3 months and reduction to the grade of private E-
1.  The sentence was approved on 29 January 1971 and was duly executed, but
the execution of the portion of the sentence which provided for confinement
at hard labor in excess of 60 days and forfeiture in excess of $50.00 pay
per month for 2 months was suspended until 13 July 1971 unless sooner
vacated.  He was confined in the Post Stockade at Fort Lewis, Washington
from 14 January 1971 to 3 March 1971.

8.  On 5 March 1971, the suspended portion of the applicant's sentence to
confinement at hard labor in excess of 60 days was vacated and the
unexecuted portion of the sentence to confinement at hard labor for 120
days was duly executed.  He was further confined at the Post Stockade at
Fort Lewis, Washington from 5 March 1971 to 22 April 1971.

9.  The applicant's discharge packet is not available.  However, his DD
Form 214 shows he was discharged on 13 May 1971 under the provisions of
Army Regulation 635-212 for unfitness, an established pattern of shirking.
He was issued an Undesirable Discharge Certificate.  He completed 1 year,
10 months and 4 days of creditable active service with 428 days of lost
time due to AWOL and confinement.

10.  His DD Form 214 for the period ending 13 May 1971 shows the periods of
lost time in Item 26a (Non-Pay Periods Time Lost)) and Item 30 (Remarks)
as:

      "9 OCT 69-13 OCT 69; 9 DEC 69–3 MAR 70; 16 MAR 70-16 MAR 70;
      21 MAR 70 -24 MAR 70; 1 JUN 70-2 DEC 70; 3 MAR 70-5 MAR 70;
      26 MAR 70-11 MAY 70; 14 JAN 71-3 MAR 71; 5 MAR 71-22 APR 71."

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

12.  Army Regulation 635-5 (Separation Documents) establishes the
standardized policy for preparing and distributing the DD Form 214.  In
pertinent part, it directs that the dates of time lost during the current
enlistment will be entered on the DD Form 214.  Lost time under Title 10
U.S.C., section 972 is not creditable service for pay, retirement, or
veteran’s benefits; however, the Army preserves a record of time lost to
explain which service between date of entry on active duty and separation
date is creditable service for benefits.

13.  Army Regulation 635-212, in effect at the time, set for the basic
authority for the separation of enlisted personnel.  Paragraph 6a(4) of the
regulation provided that members involved in an established pattern for
shirking were subject to separation for unfitness.  An undesirable
discharge was normally considered appropriate.

14.  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).

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was in the stockade at Fort Belvoir,
Virginia during the periods 16 March 1970 to 16 March 1970 and 21 March
1970 to 24 March 1970.  However, the evidence of record shows he was
convicted by a Special Court-Martial for being AWOL during these periods
and was sentenced to confinement in the Post Stockade at Fort Belvoir,
Virginia from 26 March 1970 to 11 May 1970.

2.  In accordance with Army Regulation 635-5, the applicant's inclusive
dates of lost time due to AWOL and confinement are properly reflected in
item 26a and item 30 on his DD Form 214.  Therefore, there is no basis for
expunging the applicant's periods of AWOL from 16 March 1970 to 16 March
1970 and 21 March 1970 to 24 March 1970.

3.  In the absence of evidence to the contrary it is presumed that his
administrative discharge proceedings were conducted in accordance with law
and regulations applicable at the time

4.  The applicant's record of service shows he received one Article 15 and
two Special Courts-Martial and was AWOL on five separate occasions for over
200 days.  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 an upgrade.

5.  The applicant has failed to submit evidence to show the record is in
error or unjust.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 13 May 1971; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 12 May 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

LS______  PM______  LH______  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.




                                  Linda Simmons_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011536                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050726                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR635-212                               |
|DISCHARGE REASON        |Unfitness, an established pattern of    |
|                        |shirking                                |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |100.0000                                |
|2.                      |144.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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