RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            17 June 2004
      DOCKET NUMBER:   AR2004100676


      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. Wanda L. Waller               |     |Analyst              |


  The following members, a quorum, were present:

|     |Ms. Margaret Patterson            |     |Chairperson          |
|     |Mr. William Powers                |     |Member               |
|     |Ms. Mae Bullock                   |     |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 undesirable discharge be upgraded.

2.  The applicant states that he did his time and did not run off to Canada
or England.  He contends that he has lived with this discharge for 32 years
and he believes that it would be right to overturn his discharge.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 4 February 1971.  The application submitted in this case is
dated 11 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 was inducted on 11 June 1969.  He successfully completed
basic combat training and advanced individual training in military
occupational specialty 11B (light weapons infantryman).

4.  On 20 June 1970, in accordance with his plea, the applicant was
convicted by a special court-martial of being absent without leave (AWOL)
from 7 November 1969 to 16 June 1970.  He was sentenced to be confined at
hard labor for
5 months and to forfeit $65 per month for 5 months.  On 26 June 1970, the
convening authority approved only so much of the sentence as provided for
confinement at hard labor for 4 months and forfeiture of $65 per month for
4 months.  On 21 July 1970, the unexecuted portion of the sentence to
forfeiture of pay was suspended until 2 September 1970.

5.  On 31 December 1970, a bar to reenlistment was imposed against the
applicant.

6.  On 4 January 1971, contrary to his plea, the applicant was convicted by
a special court-martial of being AWOL from 13 September 1970 to 2 December
1970.  He was sentenced to be confined at hard labor for 4 months and to
forfeit $62 per month for 4 months.  On 6 January 1971, the convening
authority approved the sentence.
7.  On 22 January 1971, the applicant was notified of his pending
separation under the provisions of Army Regulation 635-208 for unfitness.
After consulting with counsel, the applicant waived consideration of his
case by a board of officers and representation by counsel.  He also elected
not to submit a statement on his own behalf.

8.  On 22 January 1971, the applicant’s unit commander initiated a
recommendation to discharge him from the service under the provisions of
Army Regulation 635-208 for unfitness.  He cited the applicant's two
special court-martial convictions, lost time due to AWOL and confinement,
dislike for the military service, lack of self-motivation, and negative
attitude toward the military.  The unit commander further recommended that
the applicant receive an undesirable discharge.

9.  On 1 February 1971, the separation authority approved the
recommendation for separation and directed that the applicant be furnished
an undesirable discharge.

10.  The applicant was discharged on 4 February 1971 with an undesirable
discharge under the provisions of Army Regulation 635-208 for unfitness due
to an established pattern for shirking.  He had served 5 months and 24 days
of total active service with 425 days lost due to AWOL and confinement.

11.  There is no indication in the available records that the applicant
applied to the Army Discharge Review Board for a discharge upgrade within
its 15-year statute of limitations.

12.  Army Regulation 635-208, in effect at the time, set forth the basic
authority for the separation of enlisted personnel for unfitness.  The
regulation provided for the discharge of individuals by reason of unfitness
with an undesirable discharge when it had been determined that an
individual’s military record was characterized by one of more of the
following:  frequent incidents of a discreditable nature with civil or
military authorities; sexual perversion; drug addiction or the unauthorized
use or possession of habit forming narcotic drugs or marijuana; an
established pattern for shirking; or an established pattern showing
dishonorable failure to pay just debts.  An undesirable discharge was
normally considered appropriate.

13.  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.
14.  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 evidence of record does not support the applicant's contention that
he did his time.  Evidence of record shows the applicant had two lengthy
AWOL periods and only completed 5 months and 24 days of his 2-year
obligation of active duty service.

2.  The applicant’s brief record of service included a bar to reenlistment,
two special court-martial convictions, and 425 days of lost time.  As a
result, his record of service was not satisfactory and did not meet the
standards of acceptable conduct and performance of duty for Army personnel.
 Therefore, the applicant's record of service is insufficiently meritorious
to warrant a general discharge or an honorable discharge.

3.  The applicant’s administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

5.  Records show the applicant should have discovered the alleged injustice
now under consideration on 4 February 1971; therefore, the time for the
applicant to file a request for correction of any injustice expired on 3
February 1974.  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

MP_____  WP______  MB______  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 Patterson_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100676                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040617                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19710204                                |
|DISCHARGE AUTHORITY     |AR 635-208                              |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |