RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 August 2005
      DOCKET NUMBER:  AR20040011728


      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:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Ms. Linda M. Barker               |     |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 discharge be upgraded.

2.  The applicant states, in effect that he was forced to join because of a
false arrest, but he did not commit.  He was young and married less than a
year with a baby boy.

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 15 December 1970, the date the applicant was separated
from active.  The application submitted in this case is dated 16 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 that he enlisted in the Regular Army and
entered active duty on 26 May 1969, he was 18 years old.  On 13 July 1969,
while in combat basic training, the applicant was reported for being absent
without leave (AWOL).

4.  On 27 May 1970, the applicant was convicted by a Special Court-Martial
(SPCM) of being AWOL from 14 July 1969 to 8 May 1970.  He was sentenced to
confinement at hard labor for 6 months and a forfeiture of $62.00 pay per
month for 6 months.

5.  On 13 November 1970, the applicant was convicted by a SPCM of being
AWOL from 16 August to 23 October 1970.  He was sentenced to confinement at
hard labor for 3 months and a forfeiture of $62.00 pay per month for 3
months.

6.  On 25 November 1970, the applicant was psychiatrically cleared for any
administrative or disciplinary action.

7.  On 28 November 1970, the applicant received notification that action
was being taken to effect his administrative separation from the US Army
under the provisions of Army regulation 635-212, by reason of unfitness.
The basis for this action was the applicant’s chronic violation of Article
86, his lack of motivation toward self improvement, and his negative
attitude in regard to military responsibility.

8.  On 30 November 1970, 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 for
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.

9.  On 12 December 1970, the applicant was found physically fit for
retention.

10.  On 14 December 1970, 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
15 December 1970, the applicant was discharged accordingly.  The separation
document (DD Form 214) he was issued at the time, confirms he completed a
total of 1 months and 26 days of creditable active military service and
accrued a total of 506 days of time lost.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because he
was young, married and had a baby boy, was carefully considered and found
to be insufficient evidence in supporting the requested relief.  The
applicant’s records show that he was 19 years of age at the time of the
offenses.  However, there is no evidence that indicates that the applicant
was any less mature than any other soldiers of the same age who
successfully completed military service.

2.  The evidence of record reveals that the applicant had an extensive
disciplinary history of military infractions that ultimately led to his
discharge.  Therefore, given the circumstances in this case, there is
insufficient evidence to grant his request.

3.  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.

4.  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.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 December 1970; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
14 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

__MKP__  __REB __  __LMB __  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.




                                  ___Margaret K. Patterson____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011728                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050825                                |
|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.                      |                                        |


-----------------------
[pic]