RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            4 May 2004
      DOCKET NUMBER:   AR2004100459


      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             |
|     |Mr. Michael J. Fowler             |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |Member               |
|     |Mr. William D. Powers             |     |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 that his discharge be upgraded from under other
than honorable conditions to a general (under honorable conditions)
discharge.

2.  The applicant states that he had some personal problems during his time
in the military.  The applicant further states that he did not want to
separate from the military, but at that time he had no choice.

3.  The applicant states, in effect, that he wants to receive Department of
Veteran Affairs (DVA) benefits.

4.  The applicant provides no documentation in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an error, which occurred on
4 June 1969.  The application submitted in this case is dated 21 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.  Evidence of record shows that the applicant entered active duty on
10 March 1966.  He successfully completed basic training and advanced
individual training and was awarded the military occupational specialty
11B10 (Light Weapons Infantryman).

4.  On 14 June 1966, nonjudicial punishment (NJP) was imposed against the
applicant for failure to go to his appointed place of duty on 14 June 1966.
 His punishment consisted of forfeiture of $10.00 for one month,
restriction to the company area for 7 days, and extra duty for 7 days.

5.  On 22 August 1966, NJP was imposed against the applicant for failure to
go to his appointed place of duty on 21 August 1966.  His punishment
consisted of forfeiture of $21.00 for one month.

6.  Evidence of record shows that the applicant was absent without leave
(AWOL) from 18 November 1967 through 6 March 1968.  The applicant's record
further shows that civilian authorities apprehended him on 7 March 1968.
The applicant was returned to military control at Fort Hood, Texas, and
subsequently assigned to the Special Processing Detachment on 9 March 1968.

7.  On 13 March 1968, the applicant was convicted by a special court-
martial of violation of the Uniform Code of Military Justice, Article 86
for AWOL.  His sentence consisted confinement at hard labor for six months
and forfeiture of fifty-five dollars per month for six months.  The
sentence was adjudged on 13 March 1968.  However, the approval authority of
Special Court-Martial Order Number 294, dated 13 March 1968, suspended that
portion of the sentence to six months confinement at hard labor.

8.  Evidence of record shows that the applicant was AWOL from 30 March 1968
through 1 October 1968.  The applicant's record further shows civilian
authorities apprehended him on 2 October 1968.  The applicant was returned
to military control at Fort Hood and subsequently assigned to the Special
Processing Detachment on 3 October 1968.

9.  On 9 October 1968, the applicant was convicted by a special court-
martial of violation of the Uniform Code of Military Justice, Article 86
for AWOL.  His sentence consisted confinement at hard labor for six months
and forfeiture of fifty-five dollars per month for six months.  The
sentence was adjudged on 9 October 1968.

10.  The applicant's records contain Special Court-Martial Order Number
1161, dated 9 October 1968, which approved the sentence and remitted all
the unserved confinement upon the applicant's separation.

11.  The applicant's records contain Special Court-Martial Order Number
1164, dated 10 October 1968, which vacated suspension of the unserved
portion of his six months confinement at hard labor.

12.  The applicant's records contain Special Court-Martial Order Number
465, dated 16 December 1968, at Fort Riley indicating all unexecuted
portions of confinement at hard labor and forfeiture of pay pertaining to
the applicant are remitted.  As a result, the applicant was assigned to C
Company, 4th Battalion, 46th Infantry, of the 1st Armored Division, at Fort
Hood.

13.  On 28 January 1969, NJP was imposed against the applicant for failure
to go to his appointed place of duty on 28 January 1969.  His punishment
consisted of forfeiture of $20.00 for one month and restriction to the
company area for 14 days.

14.  Evidence of record shows that the applicant was AWOL on 1 February
1969. The applicant was dropped from rolls on 3 March 1969.  He was
returned to military control on 10 March 1969.
15.  On 17 March 1969, the applicant was convicted by a special court-
martial of violation of the Uniform Code of Military Justice, Article 86
for AWOL.  His sentence consisted confinement at hard labor for six months,
and forfeiture of $96.00 per month for six months.  The sentence was
adjudged on 21 March 1969.

16.  The applicant's records contain Special Court-Martial Order Number 22,
dated 10 April 1969, which suspended the applicant's confinement.

17.  The applicant's records contain Special Court-Martial Order Number 23,
dated 11 April 1969, which remitted the applicant's suspended sentence.

18.  On 23 April 1969, the applicant's company commander initiated a
request for discharge for unfitness under the provisions of Army Regulation
635-212 (Personnel Separations).

19.  On 24 April 1969, the applicant signed a statement indicating that he
was advised by his commanding officer that he was being recommended for
discharge under provisions of Army Regulation 635-212 for unfitness.  The
applicant declined counsel, waived his right to be heard by a board of
officers, and declined to submit a statement on his own behalf.

20.  On 24 April 1969, the applicant’s battalion commander recommended
approval of his discharge for unfitness and recommended that the applicant
be issued an undesirable discharge certificate.  He further requested
counseling and rehabilitation required by Army Regulation 635-212, be
waived.

21.  Evidence of record shows that the applicant was AWOL for the period of

5 May 1969 through 2 June 1969.

22.  On 9 May 1969, the major general in command of Fort Hood approved the
applicant's waiver of counseling/rehabilitation and approved the
applicant's discharge under provisions of Army Regulation 635-212.  The
commanding general directed that the applicant be furnished with an
Undesirable Discharge Certificate.

23.  On 4 June 1969, the applicant was separated under provisions of Army
Regulation 635-212, by reason of unfitness and furnished an Undesirable
Discharge Certificate.  He served 1 year, 11 months, and 2 days of active
duty service and had over 1 year of lost time.

24.  Army Regulation 635-212, in effect at the time, set forth the basic
authority for the elimination of enlisted personnel.  Paragraph 6 of the
regulation provided, in pertinent part, that an individual was subject to
separation for unfitness because of frequent incidents of a discreditable
nature with civil or military authorities; sexual perversion including but
not limited to lewd and lascivious acts, indecent exposure, indecent acts
with or assault on a child; drug addiction or the unauthorized use or
possession of habit-forming drugs or marijuana; an established pattern of
shirking; and an established pattern of dishonorable failure to pay just
debts or to contribute adequate support to dependents (including failure to
comply with orders, decrees or judgments).  When separation for unfitness
was warranted an undesirable discharge was normally considered appropriate.

25.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

26.  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 had some personal problems during his
time in the military.  However, there is no evidence in the applicant's
service records and the applicant has provided no evidence that supports
this claim.

2.  The applicant's administrative separation was accomplished in
compliance with applicable regulation with no indication of procedural
errors that would tend to jeopardize his rights.

3.  The applicant requests that his discharge be upgraded to an honorable
discharge.  However, his records show that he was convicted three times by
special courts-martial and received three Article 15's during his military
service.  Based on these facts, the applicant’s service clearly did not
meet the standards of acceptable conduct and performance of duty for Army
personnel which are required for issuance of an honorable discharge.

4.  Based on the applicant’s multiple offenses, his record of service did
not meet the regulatory standard of satisfactory service.  In the absence
of a record of satisfactory service, the applicant is not entitled to a
general discharge.

5.  The applicant request that his records be corrected so that he may
receive DVA benefits.  However, the ABCMR does not correct records soley
for the purpose of obtaining eligibility for DVA benefits.  In addition
granting veteran's benefits is not within the purview of this Board and any
questions regarding eligibility should be addressed to the DVA.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 4 June 1969; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
3 June 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 file
in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JRS___  _WDP___  _SK____  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.




                 __Stanley Kelley_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100459                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/05/04                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |