RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 October 2004
      DOCKET NUMBER:  AR2004103824


      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. Jeanie M. Biggs               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. Lawrence Foster               |     |Member               |
|     |Ms. Marla J. N. Troup             |     |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 general or an honorable discharge.

2.  The applicant states, “My character of discharge is to severe for being
AWOL.”

3.  The applicant provides copies of his discharge packet.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 21 October 1971.  The application submitted in this case is
dated
5 February 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.  The applicant’s military record shows that he was inducted in the
Regular Army for 2 years on 26 August 1970.

4.  While in initial entry training, nonjudicial punishment was imposed
against him for being absent without leave (AWOL) from 3 to 8 September
1970.

5.  While on active duty, the applicant was counseled in writing on 10
occasions for: AWOL; making a disturbance in his unit; poor attitude; poor
personal appearance; and drug addiction.

6.  On 16 September 1970, nonjudicial punishment was imposed against the
applicant for wrongfully entering a building after hours with intent to
create a disturbance by causing bunk beds to be upset.  His punishment
consisted of a forfeiture of $29.00 per month for one month, and to be
restricted to the company area for the period of seven days.  He did not
appeal the punishment.

7.  On 27 October 1970, the applicant was convicted by a summary court-
martial for AWOL from 30 September to 17 October 1970.  He was sentenced to
a forfeiture of $80.00 per month for one month, and confinement at hard
labor for
30 days.  The convening authority approved the sentence, but the
confinement at hard labor was suspended for one month, at which time,
unless the suspension is sooner vacated, the sentence to confinement will
be remitted without further action.  On 2 November 1970, the suspended
execution of the sentence to confinement was vacated.  The unexecuted
portion of the sentence to confinement was duly executed.

8.  On 2 November 1970, the applicant underwent a psychiatric evaluation
and was determined not to have a disqualifying mental or physical defect
and was cleared for administration separation.  However, the applicant was
diagnosed as being addicted to heroin.  The psychiatric stated that, the
applicant “has a history of marked social inadaptability prior to and
during his tour in the military.  The subject condition is part of a
character and behavior disorder due to deficiencies in emotional and
personality development of such a degree as to seriously impair his
function in the military service.  He uses poor judgment, is not committed
to productive goals and is unmotivated.”

9.  On 6 November 1970, the applicant was notified that he was being
considered for elimination from the service for unfitness.  He then
underwent a medical examination and was medically cleared for
administrative separation.

10.  On 13 November 1970, the applicant acknowledged notification, waived a
Board of Officers and declined the opportunity to submit a statement in his
own behalf.

11.  On 16 November 1970, the applicant’s unit commander recommended that
the applicant be discharged from the service for unfitness with an
Undesirable Discharge Certificate.

12.  The intermediate commander concurred with the applicant’s commander
recommendation for separation.

13.  On 7 December 1970, the appropriate authority approved the applicant’s
commander’s recommendation to discharge the applicant for unfitness with an
Undesirable Discharge Certificate.

14.  On 12 April 1971, the applicant was convicted by a summary court-
martial for being AWOL from 15 December 1970 to 4 January 1971 and 17
January to 25 February 1971.  He was sentenced to a forfeiture of $95.00
for one month.  The sentence was approved and ordered executed.

15.  On 30 August 1971, the applicant was charged with AWOL from 7 to 12
July 1971 and 22 July to 20 August 1971.  Thereafter, he requested
discharge for the good of the service in lieu of trial by court-martial
under the provision of Chapter 10, AR 635-200.  He was advised of his
rights and did not submit a statement in his own behalf.

16.  On 16 September 1971, the applicant underwent a medical examination
and was medically cleared for administrative separation.

17.  On 17 September 1971, the unit commander recommended that the
applicant be separated for the good of the service with an Undesirable
Discharge Certificate.

18.  On 24 September 1971, the intermediate commander concurred with the
applicant’s commander’s recommendation for separation.

19.  On 27 September 1971, the Staff Judge Advocate requested investigation
to determine desirability of psychiatric evaluation.

20.  On 28 September 1971, a mental status evaluation shows no significant
mental illness.

21.  On 29 September 1971, the applicant underwent a psychiatric evaluation
and was determined not to have a disqualifying mental or physical defect
and was cleared for administrative separation.  However, the applicant was
diagnosed with a passive-aggressive personality disorder.

22.  Accordingly, on 21 October 1971, the applicant was given an
Undesirable Discharge Certificate under the provisions of Chapter 10, AR
635-200, for the good of the service.  He had 5 months and 13 days of total
active federal service with 255 days of lost time.

23.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of that regulation provides,
in pertinent part, that a member who has committed an offense or offenses
for which the authorized punishment includes a punitive discharge may at
any time after the charges have been preferred, submit a request for
discharge for the good of the service in lieu of trial by court-martial.  A
discharge under other than honorable conditions is normally considered
appropriate. However, at the time of the applicant's separation the
regulation provided for the issuance of an undesirable discharge.





DISCUSSION AND CONCLUSIONS:

1.  In view of the applicant's record of service that includes numerous
acts of indiscipline, 10 written counseling statements, two non-judicial
punishments, and two summary courts-martial, it does not appear that his UD
was too severe.

2.  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.

3.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.

4.  In view of the foregoing, there is no basis for granting the
applicant’s request.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 21 October 1971; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on          20 October 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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___mjnt _  ____lf___  ___rjw ___  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.




                                  _________Raymond J. Wagner___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004103824                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20041028                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19711021                                |
|DISCHARGE AUTHORITY     |AR 635-200, CH 10                       |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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