RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            20 July 2004
      DOCKET NUMBER:   AR2004100439


      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. Lisa O. Guion                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred N. Eichorn               |     |Chairperson          |
|     |Mr. Kenneth W. Lapin              |     |Member               |
|     |Mr. Antonio Uribe, Jr.            |     |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 effect, that his under other than honorable
conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that his behavior of going absent
without leave (AWOL) was caused by depression that was brought on when he
was denied the opportunity to serve his country in the manner that he
believed he was able to.  He claims to have requested transfer on two
occasions, but was denied.  He also states that his depression caused him
to drink, which resulted in his alcoholism disease.

3.  The applicant provides a self-authored statement in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error, which
occurred on 23 September 1969.  The application submitted in this case is
dated 19 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 he was inducted and entered
active duty in the Regular Army on 28 September 1967.  He successfully
completed basic training and advanced individual training (AIT), and he was
awarded military occupational specialty (MOS) 70A (General Clerk).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows, in
Item 33 (Appointments & Reductions), that the applicant was promoted to the
rank of private first class/E-3 (PFC/E-3) on 13 June 1968 and this was the
highest rank he held while serving on active duty.  Item 33 also shows that
due to his own misconduct, he was reduced in rank on four separate
occasions.


5.  The applicant’s record shows that during his active duty tenure, he
earned the National Defense Service Medal (NDSM), Armed Forces
Expeditionary Medal (AFEM), and Marksmanship Qualification Badge with Rifle
Bar. There are no other acts of valor, significant achievement, or service
warranting special recognition on file in his record.

6.  The applicant's record reveal a disciplinary history that includes
fourteen separate periods of AWOL between 1 February 1968 and 11 September
1969, which resulted in his accruing a total of 132 days of time lost.

7.  The record also shows that he accepted nonjudicial punishment (NJP)
under the provisions of Article 15 of the Uniform Code of Military Justice
(UCMJ) on the following six occasions for the offense(s) indicated:  14
November 1967, for being AWOL for one day; 11 December 1967, for being AWOL
for one day;
8 January 1968, for failure to obey a lawful order given by his commanding
officer; 5 February 1968, for being AWOL for three days; 13 September 1968,
for being AWOL for one day; and 10 October 1968, for being AWOL for one
day.

8.  The record further shows that he was convicted of being AWOL by a
special court-martial (SPCM) on 10 December 1968 and by a summary court-
martial (SCM) on two separate occasions, 15 May 1969 and 31 July 1969.

9.  The record does not include a separation packet containing the specific
facts and circumstances surrounding the applicant’s separation processing.
However, it does include a separation document (DD Form 214) that confirms
the authority and reason for his separation.

10.  The DD Form 214 on file confirms that on 23 September 1969, the
applicant was separated with an UOTHC discharge under provisions of Army
Regulation 635-212, by reason of unfitness.  This document further shows
that at the time of his discharge, the applicant had completed a total of 1
year, 7 months, and
14 days of creditable active military service and he had accrued 132 days
of time lost due to AWOL.

11.  There is no indication that the applicant requested an upgrade of his
discharge from the Army Discharge Review Board within its 15-year stature
of limitations.

12.  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’s contention that his depression and alcoholism caused
him to go AWOL was carefully considered.  However, this factor was not
found to be sufficiently mitigating to warrant the requested relief.

2.  The available evidence is void of a discharge packet containing the
specific facts and circumstances concerning the events that led to the
applicant’s discharge.  However, there is a properly constituted DD Form
214 on file that was authenticated by the applicant with his signature.
This document identifies the reason and characterization of the discharge,
and government regularity is presumed in the discharge process.

3.  Lacking evidence to the contrary, it is concluded that all requirements
of law and regulation were met and the rights of the applicant were
protected throughout the separation process.

4.  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.

5.  Records show the applicant should have discovered the alleged error now
under consideration on 23 September 1969; therefore, the time for the
applicant to file a request for correction of any error or injustice
expired on 22 September 1972.  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

_FE______  _KWL___  _AU____  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.




                 __Fred N. Eichorn_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR204100439                             |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/07/20                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19690923                                |
|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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