RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          12 AUGUST 2002
      DOCKET NUMBER:  AR2004100372


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Ann Campbell                  |     |Chairperson          |
|     |Mr. James Anderholm               |     |Member               |
|     |Mr. John Infante                  |     |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 records be corrected by upgrading his
discharge to honorable.

2.  The applicant states that he spent enough good time to warrant an
honorable discharge, that at the time of his discharge he was under
emotional distress and hardship at home.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 16 April 1968.  The application submitted in this case is dated
25 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 enlisted in the Regular Army on 19 January 1967, for a
period of 2 years.

4.  On 2 June 1967, he accepted nonjudicial punishment under the provisions
of Article 15, Uniform Code of Military Justice (UCJM) for missing
formation and for failure to go to his appointed place of duty on 29 May
1967, and for being absent without proper authority until 31 May 1967.  His
punishment was restriction, extra duty, and a forfeiture of pay.

5.  The applicant’s DA Form 20 (enlisted Qualification Record), item 38
(Record of Assignments) shows his conduct and efficiency as unsatisfactory
from              9 August 1967 to the date of his discharge.






6.  On 14 September 1967, he was convicted by a summary court-martial of
being absent without leave (AWOL) from 9 August 1967 until 31 August 1967.
He was sentenced to a reduction, restriction, and a forfeiture of pay.

7.  The applicant’s DA Form 20 (Enlisted Qualification Record) has a
notation in item 42 (Remarks), which states that the applicant was arrested
on 1 December 1967, by civilian authorities in Bativia, New York, while in
an AWOL status.  He was charged with petty larceny, tried and convicted,
however, his sentence was suspended and he was released to military
authorities on 6 December 1967, at Fort Dix, New Jersey.

8.  On 19 December 1967, he was convicted by a summary court-martial of
being AWOL from 2 November 1967 to 6 December 1967.  He was sentenced to
perform hard labor without confinement for one month, and a forfeiture of
pay.

9.  On 28 December 1967, he accepted nonjudicial punishment under the
provisions of Article 15, Uniform Code of Military Justice for failure to
go to his appointed place of duty.  His punishment was a forfeiture of pay.

10.  The facts and circumstances pertaining to the applicant's discharge
are not in the available records.  However, his DD Form 214 (Armed Forces
of the United States Report of Transfer or Discharge) indicates he was
discharged on 16 April 1968, under Army Regulation 635-212, and was issued
an under other than honorable conditions discharge.  He had 1 year and 12
days of creditable service, and 76 days of lost time.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the
discharge proceedings were conducted in accordance with law and regulations
applicable at the time. The character of the discharge is commensurate with
his overall record.




2.  The applicant’s contention that he spent enough good service to warrant
an honorable discharge is not supported by any evidence in the available
records or any provided by the applicant.  His conduct and efficiency was
listed as unsatisfactory from August 1967 until his discharge in April
1968.

3.  There is no evidence in the available records nor did the applicant
provide documentation to substantiate his claim that he was under emotional
distress or hardship at home.

4.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 April 1968; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         15 April 1971.  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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___AC __  ___JA___  ___JI ___  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.




            _____Ann Campbell________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100372                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040812                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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