RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          17 August 2004
      DOCKET NUMBER:  AR2004099951


      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. Rosa M. Chandler              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Mr. Robert J. Osborn, II          |     |Member               |
|     |Ms. Eloise C. Prendergast         |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 essence, that his undesirable discharge (UD)
be upgraded to an honorable discharge.

2.  The applicant states, in essence, that at the time of separation he was
advised his UD would be upgraded to that of a general discharge after 6
months.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 10 June 1970.  The application submitted in this case is
dated
17 October 2003.

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’s military records show that, on 28 August 1968, he was
inducted into the Army of the United States for 2 years.  He completed the
training requirements and he was awarded military occupational specialty
(MOS) 36A (Wireman).  On 28 October 1968, he was assigned to the Fort Ord,
California.

4.  On 9 November 1968, nonjudicial punishment (NJP) under the provisions
of Article 15, Uniform Code of Military Justice, was imposed against the
applicant for being absent without leave (AWOL) from his unit from 28
October-
1 November 1968 and from 5-6 November 1968.  His punishment included
forfeiture of $30.00 pay per month for 2 months and 30 days of extra duty
and restriction.

5.  On 23 December 1968, he was advanced to pay grade E-2.  On 22 January
1969, the applicant was convicted by a special court-martial of being AWOL
from his unit from 3-31 December 1968.  He was sentenced to serve in
confinement at hard labor for 3 months (suspended), reduction from pay
grade E-2 to pay grade
E-1, and forfeiture of $41.00 pay per month for 3 months.  Effective 11
March 1969, that portion of the sentence that provided for confinement at
hard labor was vacated.

6.  On 7 April 1969, the applicant was convicted by a summary court-martial
of being AWOL from 28 February-10 March 1969.  He was sentenced to serve in
confinement at hard labor for 1 month (suspended), and forfeiture of $25.00
pay per month for 1 month.

7.  On 11 June 1969, the applicant was convicted by a special court-martial
of being AWOL from 6-20 May 1969.  He was sentenced to serve 5 months in
confinement at hard labor, and the forfeiture of $41.00 pay per month for
5 months.  Effective 8 July 1969, that portion of the sentence that
provided for confinement at hard labor was suspended for 5 months.

8.  The applicant was advanced to pay grade E-2 on 9 July 1969.  On 6
February 1970, NJP was imposed against the applicant for being AWOL from
his unit from 1-5 February 1970 and for having in his possession with the
intent to deceive a certain instrument purporting to be a liberty pass,
knowing the same to be false on 5 February 1970.  His punishment included
reduction from pay grade E-2 to pay grade E-1, forfeiture of $22.00 pay for
1 month and 14 days of restriction.

9.  On 24 February 1970, the applicant underwent a psychiatric evaluation
by a professionally trained psychiatrist.  The examining psychiatrist
determined that the applicant had no desire to work for the Army.  He had
no psychiatric disease and he spoke clearly and in an understandable
manner.  The applicant was determined to be able to distinguish right from
wrong and to adhere to the right and he was able to understand the nature
of, and participate in, board proceedings.  He met medical retention
standards and he was cleared psychiatrically for administrative action
deemed appropriate by his command.

10.  On 3 March 1970, the applicant's commander recommended that the
applicant appear before a board of officers for the purpose of determining
whether he should be separated prior to the expiration of his term of
service under the provisions of Army Regulation 635-212, due to unfitness.
He cited as the reason for the recommendation the applicant's habits and
traits of character manifested by repeated commission of petty offenses and
shirking.  The applicant's behavior demonstrated poor impulse control, a
complete lack of constructive motivation and antisocial tendencies.  The
applicant was advised of his rights.

11.  On 17 March 1970, NJP was imposed against the applicant for willfully
disobeying a lawful order given by a commissioned officer on 10 March 1970.
 His punishment included 30 days of extra duty.

12.  A bar to reenlistment was initiated against the applicant, as a result
of the above misconduct.  On 22 April 1970, he acknowledged the bar to
reenlistment and indicated he did not desire to make a statement.   On 8
May 1970, the bar to reenlistment was approved.

13.  On 24 April 1970, the applicant's commander requested that the
requirement for further rehabilitation be waived.  The commander stated the
applicant's performance had not improved; that on 15 April 1970, a military
police report showed the applicant allegedly assaulted another military
member by striking him in the left ear with a screw driver.  The
applicant's commander urged that he be separated as soon as possible.

14.  On the same date, the applicant authenticated a statement in which he
acknowledged that he had consulted with legal counsel and he acknowledged
that he had been advised of the basis for the contemplated action to
separate him under the provisions of Army Regulation 635-212, for
unfitness.  He further acknowledged that he understood the ramifications of
receiving a UD.  He also waived further representation by legal counsel and
a personal appearance before a board of officers.  He did not submit a
statement in his own behalf.

15.  On 26 May 1970, competent authority waived further rehabilitation,
approved the recommendation for separation under the provisions of Army
Regulation
635-212, for unfitness and directed that the applicant be separated with a
UD.

16.  On 10 June 1970, the applicant was discharged under the provisions of
Army Regulation 635-212, for unfitness with a UD.  He had completed 1 year,
4 months and 28 days of active military service and he had 135 days of lost
time due to being AWOL and in military confinement.  He was assigned a
Separation Program Number (SPN) of "384" showing the reason and authority
for separation was "Unfitness, Alcohol or other drug
offenses/Miscellaneous."

17.  On 3 February 1981, the applicant was issued a DD Form 215 (Correction
to DD Form 214) showing his SPD was "JKJ" and that the reason and authority
for separation was "An established pattern of shirking."

18.  The applicant applied to the Army Discharge Review Board for an
upgrade of his discharge in 2003, which was past that board's 15-year
statute of limitations.
19.  Army Regulation 635-212, in effect at the time, set forth the basic
authority for the separation of enlisted personnel and provided, in
pertinent part, that members involved in a frequent incidents of a
discreditable nature with civil or military authorities were subject to
separation for unfitness.  A UD was normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations, then in effect, with no indication
of procedural errors which would have jeopardized his rights.  The
applicant's service record fully supports both the reason for discharge and
the characterization of his service.  The applicant has provided no
evidence to the contrary.

2.  The US Army does not have, nor has it ever had, a policy to
automatically upgrade discharges or to accept requests for upgrade after a
certain amount of time.  Each case is decided on its own merits when an
applicant submits a DD Form 149 (Application for Correction of Military
Record) requesting a change in discharge.  Changes may be warranted if the
Board determines that the characterization of service or the reason(s) for
discharge, or both, were improper or inequitable.  The applicant has failed
to convince the Board of either.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 June 1970; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 9 June 1973.  However, 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 RELIEF

________  ________  ________  GRANT FORMAL HEARING

__slp___  __rjo___  __ecp___  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.



                                  Shirley L. Powell
            ______________________
                    CHAIRPERSON

























                                    INDEX

|CASE ID                 |AR2004099951                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040817                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |19700610                                |
|DISCHARGE AUTHORITY     |AR635-212                               |
|DISCHARGE REASON        |A51.00                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.5000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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