RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          9 November 2004
      DOCKET NUMBER:  AR2004102799


      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:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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, in effect, that his undesirable discharge (UD)
be upgraded to a general discharge (GD) under honorable conditions.

2.  The applicant states, in effect, he was not kicked out of the military,
he requested separation with the understanding that he would receive a GD
and the GD would be upgraded to an honorable discharge in 6 months.  He
requested separation, because of the racial prejudice to which he was
exposed.  Some of the trouble that occurred when he drank was his fault.
But, it was not his fault when he was court-martialed for hitting a soldier
in the face after the soldier used a racial slur when speaking to him.  He
believes his discharge should be upgraded to a GD so that he may be
eligible for medical treatment/benefits, due to being infected with
hepatitis and syphilis while assigned to Korea.

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 11 April 1969.  The application submitted in this case is dated
19 January 2004.

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.  On 24 August 1967, the applicant enlisted in the Regular Army for 3
years.  He was assigned to Fort Polk, Louisiana for basic training and
advanced individual training.

4.  On 4 October 1967, nonjudicial punishment (NJP) under the provisions of
Article 15, Uniform Code of Military Justice (UCMJ), was imposed against
the applicant for breaking restrictions on 2 October 1967.  His punishment
included a forfeiture of $21.00 pay for 1 month and 7 days of extra duty.
On 28 October 1967, NJP under the provisions of Article 15, UCMJ, was
imposed against him for having in his possession one live round of
ammunition.  His punishment included a forfeiture of $20.00 pay for 1 month
and 7 days of extra duty and restriction.

5.  The applicant completed the training requirements and he was awarded
military occupational specialty (MOS) 36K.  On 2 May 1968, he was assigned
to Korea with duties in his MOS.

6.  On 25 January 1968, the applicant was convicted by a special court-
martial (SPCM) of being disrespectful in language towards a commissioned
officer on two occasions, of being disrespectful in his behavior towards a
noncommissioned officer and of failure to follow orders (twice) on 12
January 1968.  He was sentenced to a forfeiture of $64.00 pay per month for
6 months and confinement at hard labor for 6 months.  On 25 March 1968, the
unexecuted portion of the applicant's sentence to confinement was suspended
for 4 months.  On 11 April 1968, the suspended portion of the sentence was
vacated.

7.  On 12 April 1968, the applicant was convicted by a summary court-
martial (SCM) of failing to obey a lawful order by introducing an alcoholic
beverage into the barracks and drinking it on 9 April 1969.  He was
sentenced to a forfeiture of $64.00 pay per month for 1 month.

8.  On 27 November 1968, NJP under the provisions of Article 15, UCMJ, was
imposed against him for wrongfully disobeying a lawful order.  His
punishment included a forfeiture of $15.00 pay for 1 month and 14 days of
extra duty and restriction.

9.  On 9 January 1969, as part of the separation process, the applicant
underwent a psychiatric examination by a professionally trained
psychiatrist.  No psychiatric disease was found.  He was determined to be
mentally responsible, capable of distinguishing right from wrong and able
to adhere to the right.  The applicant commented that he wanted out of the
Army and he did not care what type of discharge he received.  The applicant
was psychiatrically cleared for any administrative measures deemed
appropriate by his chain of command.

10.  The applicant's Standard Form 88 (Report of Medical Examination),
dated
11 February 1969 shows he underwent a separation medical examination and
that he had been treated for syphilis; however, at the time of this
examination he had no signs of active syphilis.  The examining physician
made no reference to hepatitis.  The applicant was determined to be
qualified for separation.

11.  On 10 January 1969, the unit commander notified the applicant of his
intent to recommend that a board of officers be convened under the
provisions of Army Regulation 635-212, for the purpose of determining
whether he should be discharged for unfitness before the expiration of his
term of service.

12.  On 13 January 1969, legal counsel advised the applicant of the basis
for the contemplated separation action and its effects.  He was also
advised of the rights available to him.  The applicant authenticated a
statement in which he acknowledged he understood the ramifications of
receiving a UD.  He waived further representation by legal counsel and a
personal appearance before a board of officers.  He also declined to submit
a statement in his own behalf.

13.  On 23 January 1969, the commander recommended that the applicant be
separated under the provisions of Army Regulation 635-212, due to
unfitness.  The commander stated that the applicant's frequent incidents of
a discreditable nature with military authorities, his established pattern
of shirking and the burden that he placed on his superiors was the basis
for the recommendation.  The commander also stated that on 19 January 1969,
the applicant was apprehended by military police on Camp Humphrey's and
charged with larceny of Government property, destruction of Government
property and assaulting a military policeman.  Upon being apprehended by
military police the applicant demolished his confinement cell and created
such a disturbance that it was necessary to summon the battalion surgeon to
administer five injections to calm him down.  Disciplinary action was
pending.  However, there is no evidence that he was ever punished for this
incident.

14.  On 24 January 1969, the battalion commander recommended approval with
a UD.  On 30 January 1969, the brigade commander recommended approval with
a UD.

15.  On 14 March 1969, the applicant was convicted by a SCM of willfully
striking a specialist on the face with his fist on 10 March 1969; of
willfully disobeying a lawful order twice and of threading to do bodily
harm against a lieutenant on
11 March 1969.  He was sentenced to a forfeiture of $50.00 pay per month
for
1 month and confinement at hard labor for 1 month.

16.  On 30 March 1969, competent authority approved the recommendation for
discharge and directed the issuance of a UD under the provisions of Army
Regulation 635-212, by reason of unfitness.

17.  The applicant's DD Form 214 shows he was discharged on 11 April 1969.
He had completed 1 year, 2 months and 7 days of active military service and
he had 161 days of lost time due to being AWOL and in military confinement.

18.  On 18 October 1979, the Army Discharge Review Board (ADRB) denied the
applicant’s request for an upgrade of his discharge under 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 elimination of enlisted personnel who were found to be
unfit or unsuitable for military service.  The pertinent regulation further
provided, in pertinent part,
that service members discharged for unfitness would be furnished a UD,
unless circumstances warranted a general discharge or a honorable
discharge.

20.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the 3 year limit on filing to the
Army Board for Correction of Military Records (ABCMR) should commence on
the date of final action by the ADRB.  In complying with this decision, the
ABCMR has adopted the broader policy of calculating the 3-year time limit
from the date of exhaustion in any case where a lower level administrative
remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was properly separated in accordance with regulations
then in effect and there is no indication of procedural errors, which would
have jeopardized his rights.

2.  The type of discharge directed and the reason for discharge is
appropriate considering the facts of the case.

3.  There is nothing in the applicant’s records and he has provided nothing
that shows prejudicial treatment or discrimination by his peers or his
chain of command.

4.  Entitlement to veteran’s benefits is not a matter under the purview of
this Board, but rests with the Department of Veteran Affairs.  Further, the
lack of entitlements does not provide a basis upon which to grant an
upgrade of a discharge.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 18 October 1979; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
17 October 1982.  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

__mdm___  __lds___  __lgh___  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.


                                  Mark D. Manning
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004102799                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041109                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |19690411                                |
|DISCHARGE AUTHORITY     |AR635-212                               |
|DISCHARGE REASON        |A60.00                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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