RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         11 January 2005
      DOCKET NUMBER:  AR2004106946


      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:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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 that his undesirable discharge be upgraded to an
honorable discharge.

2.  The applicant states, in effect, that he was drafted at a young age
with a wife and two young children to support.  He further states that
marital problems with his wife caused him to be absent without leave
(AWOL).

3.  The applicant continues that he was physically abused as a child by his
adopted father, which caused him to have an uncontrollable rage and poor
childhood for which he has been seeing a psychiatrist for the last nine
years.

4.  The applicant concludes because of the deprived life and marital
problems he was unable to adjust to the military.  He would appreciate a
discharge upgrade to use Department of Veterans Affairs medical benefits.

5.  The applicant provides a psychiatric assessment, dated 28 February
1996.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 21 April 1969.  The application submitted in this case is dated
13 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 27 September 1947, the applicant was born.  He was inducted into the
Army on 5 August 1968 for a period of two years.  He did not successfully
complete basic combat training.

4.  On 8 October 1968, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for being absent
without leave (AWOL) for the periods from 26 August 1968 through
10 September 1968 and 21 September 1968 through 3 October 1968.



5.  On 7 March 1969, the applicant was convicted by a special court-martial
of being AWOL for the periods from 20 October 1968 through 25 October 1968
and 2 November 1968 through 4 March 1969.  He was sentenced to perform hard
labor for three months.

6.  On 17 March 1969, the applicant underwent a mental evaluation by a
medical physician that determined that he could distinguish right from
wrong and that he possessed sufficient mental capacity to understand and
participate in board proceedings.  The psychiatrist noted that considering
the applicant's background he had done well holding together his family.

7.  Apparently the applicant was notified by his commander that he was
required to appear before a board of officers to determine whether he
should be discharged for unfitness under provisions of Army Regulation 635-
212 (Discharge-Unfitness and Unsuitability), paragraph 6 for unfitness for
duty.

8.  On 26 March 1969, the applicant consulted with the Defense Counsel at
Fort Devens, Massachusetts.  The applicant was advised of his rights and
the effect of a waiver of those rights.

9.  The applicant was also advised of the basis for his separation under
the provisions of Army Regulation 635-212.  The applicant indicated that he
was counseled by appropriate counsel, that he waived consideration of his
case by a board of officers, that he did not provide statements on his own
behalf and that he waived representation by military counsel.

10.  The applicant also indicated that he was aware that as a result of the
issuance of an undesirable discharge that he may be ineligible for any or
all benefits as a veteran under both Federal and state laws and that he may
expect to encounter substantial prejudice in civilian life based on that
undesirable discharge.

11.  On 14 April 1969, the appropriate authority approved the applicant's
discharge for unfitness under the provisions of Army Regulation 635-212.
He directed that the applicant be issued an "Undesirable Discharge
Certificate" and
"Army Regulation SPN 28B [Unfitness - frequent involvement in incidents of
a discreditable nature with civil or military authorities]" would be
entered in item 11c of the applicant's DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge).



12.  On 21 April 1969, the applicant was discharged from active duty and
was issued an undesirable discharge under the provisions of Army Regulation
635-212.  He served 2 months and 9 days of creditable active service and
had 190 days of lost time due to AWOL and confinement.

13.  The applicant submitted an assessment letter from a psychiatrist,
dated 28 February 1996, which shows the applicant was diagnosed with
depression and passive aggressive personality.  This assessment further
shows that he is a patient still in therapy and is on medication.

14.  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.

15.  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.

16.  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 was young and had martial problems.
Records show that the applicant was 20 years and 11 months old at the time
his active service began and 21 years and 6 months old at the time of his
discharge. After his first Article 15 he knew there would be consequences
for his actions.  Therefore, his contention that he was young at the time
of his offenses does not mitigate his indiscipline.

2.  The applicant further contends that he was having marital problems
during his active service.  There is no evidence and the applicant has not
provided evidence that shows he sought assistance from his chain of
command, chaplain, or community support service for his marital problems.
Therefore, there is no basis for this argument.

3.  The applicant concludes that his poor childhood has caused him to have
an uncontrollable rage and he is presently being treated for his condition.
 Records show that the applicant was given a psychiatric evaluation prior
to his separation and the medical psychiatrist found he could distinguish
right from wrong and adhere to the right.

4.  Evidence shows that the applicant was properly and equitably discharged
in accordance with the regulations in effect at the time.

5.  In the absence of evidence to the contrary, it is determined that all
requirements of law and regulations were met and the rights of the
applicant were fully protected throughout the separation process.

6.  The applicant's records show that he was convicted by one special
court-martial, received one Article 15, and had three instances of AWOL.
The applicant had completed 2 months and 9 days of his 2-year induction
with a total of 190 lost days due to AWOL and confinement.  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 or general discharge.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 21 April 1969; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 20 April 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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__LDS _   __JTM___  __CAK__  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.




                                  ____Linda D. Simmons__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004106946                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |11 January 2005                         |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |21 April 1969                           |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0133.000                            |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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