RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           9 December 2004
      DOCKET NUMBER:  AR2004104604


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Michael J. Flynn              |     |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.

2.  The applicant states, in effect, that he was unjustly inducted after
his request to rescind his induction was denied.  He further states that
once he entered military service, he applied for a hardship discharge and
after months of waiting, this request was also denied.  He claims that this
denial of his hardship discharge request left him disoriented and resulted
in his going absent without leave (AWOL).  He claims he turned himself in
and after a short time in a holding facility, after being returned to
active duty, he again requested a hardship discharge.  However, a few weeks
later, this request was also disapproved.  He states he again went AWOL and
was apprehended and spent a short time in a correction facility.  He was
court-martialed and was back to a holding facility pending orders.
However, while waiting for orders, his 24 year old sister was killed in a
horrible fire.  He claims a short time later, he was issued an UD.

3.  The applicant provides a self-authored statement and a hardship
discharge packet in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 10 June 1969.  The application submitted in this case is
dated 17 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 record shows he was inducted into the Army and entered
active duty on 2 October 1967.  He was trained in and awarded military
occupational specialty (MOS) 05C (Radio Teletype Operator) and the highest
rank he attained while serving on active duty was private first class
(PFC).
4.  On 24 April 1968, the applicant submitted a packet requesting a
hardship discharge with all his justifying documents.  On 27 May 1968, the
Adjutant General of the United States Army Signal School, Fort Gordon,
Georgia, returned the application and indicated that it was not favorably
considered because every reasonable effort had not been made to alleviate
the dependency condition.  The denial further indicated that other family
members had a moral obligation to assist during the time the applicant was
in military service.

5.  On 2 July 1968, the applicant departed his unit AWOL.  He remained away
for 90 days until returning to military control on 29 September 1968.  On
25 October 1968, he was convicted of being AWOL for this period by a
special court-martial (SPCM).  He was sentenced to confinement at hard
labor for three months (suspended) and to forfeit $73.00 of pay per month
for three months.

6.  In November 1968, while assigned to Fort Devens, Massachusetts, the
applicant again applied for a hardship discharge.  On 16 December 1968, he
departed AWOL from his unit at Fort Devens.

7.  On 30 December 1968, the Adjutant General, Headquarters, Fort Devens,
Massachusetts, after giving careful and sympathetic consideration to the
applicant’s hardship discharge and the evidence submitted, denied the
request.  The denial indicated an examination of the application and the
supporting documentation did not indicate that an undue and genuine
dependency/hardship existed as a result of the disability of the
applicant’s father, which occurred after the applicant’s entry on active
duty, had not been aggravated to such an extent as to necessitate care and
support by the applicant.  The explanation further stated that from a
financial perspective, the applicant’s release from active duty did not
seem to be the only readily available means of eliminating or materially
alleviating the hardship condition.  The applicant retained the option of
supplementing his mother’s income from his military pay and could also
apply for a Class Q allotment.

8.  On 14 January 1969, the applicant returned to military control.  On 15
January 1969, he departed AWOL and remained away until being returned to
military control on 9 March 1969.

9.  On 2 April 1969, the applicant was found guilty of being AWOL from on
or about 16 December 1968 through on or about 14 January 1969; and from on
or about 15 January through on or about 9 March 1969 by a SPCM.  The
resultant sentence included confinement at hard labor for six months.

10.  The applicant’s unit commander recommended the applicant be discharged
under the provisions of Army Regulation 635-212, by reason of frequent
incidents of a discreditable nature with military authorities.  The
applicant’s disciplinary history, which included two SPCM convictions, was
cited as the basis for the separation action.

11.  On 14 May 1969, the applicant consulted with legal counsel and after
being advised of the basis for the contemplated separation, its effects and
the rights available to him, he waived his right to consideration of his
case by a board of officers, personal appearance before a board of officers
and his right to counsel.  He further elected not to make a statement in
his own behalf.

12.  On 5 June 1969, the separation authority directed the applicant’s
separation under the provisions of Army Regulation 635-212 and that he
receive an UD.  On 10 June 1969, the applicant was discharged accordingly.
The separation document (DD Form 214) he was issued at the time, as
amended, confirms he completed a total of 10 months and 17 days of
creditable active military service and accrued a total of 196 days of time
lost due to AWOL and confinement.

13.  On 14 June 1974, after finding his discharge was proper and equitable,
the Army Discharge Review Board (ADRB) denied the applicant’s request for
an upgrade of his discharge.

14.  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.

15.  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 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 ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the Board 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’s contention that his discharge was unjust because he had
been wrongfully inducted and unjustly denied a hardship discharge was
carefully considered.  However, there is insufficient evidence to support
this claim.

2.  The evidence of record confirms the applicant’s two requests for
hardship discharge were properly processed and considered while he was on
active duty. The denial of these requests was based on a careful evaluation
of his situation and the evidence he submitted by the proper authorities.
There is no evidence that suggests these denials were arbitrary or
capricious and the applicant’s dissatisfaction with the decisions was not a
valid reason for him to go AWOL.

3.  The evidence of record confirms the applicant was notified of the
contemplated separation action by his unit commander and that he consulted
legal counsel.  It further shows that after being advised of the basis for
the contemplated separation action and its possible effects, he voluntarily
elected to waive his right to have his case considered by a board of
officers and he elected not to submit a rebuttal statement in his own
behalf.

4.  The record further confirms that all requirements of law and regulation
were met, the rights of the applicant were fully protected throughout the
separation process.  Finally, the record shows the character of the
applicant’s discharge accurately reflects his overall record of
undistinguished service.

5.  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.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 14 June 1974.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 13 June 1977.  However, he 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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__MHM__  _LDS___  _MJF____  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.




            ____Melvin H. Meyer _____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004104604                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/12/09                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1969/06/10                              |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |Frequent Incidents                      |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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