RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 September 2005
      DOCKET NUMBER:  AR20050000074


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Eric N. Andersen              |     |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 (UD) be upgraded.


2.  The applicant states that his spouse was pregnant with their fourth
child and had suffered three miscarriages in the past.  She was
experiencing problems and he had just completed basic combat training
(BCT).  He was ordered to report to Fort Sill, Oklahoma for advanced
individual training (AIT).  He departed on his approved leave; however, he
did not report to Fort Sill, Oklahoma.  He went absent without leave (AWOL)
in order to assist his spouse during her difficult time.

3.  The applicant provides two character references in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 10 January 1968, the date of his discharge.  The application
submitted in this case is dated 14 December 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 limitations 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 records show he was inducted on 20 July 1966,
as a food service specialist (94A), at the age of 25.

4.  The applicant completed BCT on 23 September 1966.  He departed on
ordinary leave (OLV) on 23 September 1966, for a period of 14 days, with a
reporting date of 8 October 1966 to Fort Knox, Kentucky.  He failed to
report to Fort Knox and was placed in an AWOL status effective 8 October
1966 and remained AWOL until 28 February 1967.

5.  He was convicted by two special courts-martial of being AWOL.  He was
AWOL from 8 October 1966 to 1 March 1967 and from 20 June to 9 November
1967.  His sentences consisted of confinement at hard labor and forfeitures
of pay.

6.  On 4 December 1967, the applicant was notified by his commander that he
was being recommended for discharge under the provisions of Army Regulation

635-212, for unfitness.  After consulting with counsel, the applicant
waived his rights and elected not to submit a statement in his own behalf.

7.  The applicant underwent a separation medical examination on 7 December
1967, and was found qualified for separation with an 111111 physical
profile.

8.  The applicant underwent a psychiatric evaluation on 7 December 1967,
which diagnosed him as having a passive aggressive personality.  The
examining physician stated that the applicant had been AWOL on two
occasions for a total of 9 months, that his judgment was poor, and that he
was not committed to any productive goals.  He also stated that he was
completely unmotivated for further military service, that he would not
adjust to future military duty, and that additional rehabilitative efforts
would be non-productive.  The examining physician determined that he could
distinguish right from wrong, possessed the mental capacity to participate
in administrative or board proceedings, and that the applicant had no
disqualifying mental defects sufficient to warrant disposition through
medical channels.

9.  On 21 December 1967, the applicant’s commander submitted a
recommendation to separate the applicant from the service under the
provisions of Army Regulation 635-212, for unfitness.  He based his
recommendation on the applicant's acts of misconduct, which included his
two special courts-martial for AWOL.

10.  Item 44 (Time Lost), of his DA Form 20 (Enlisted Qualification
Record), shows that he was AWOL from 8 October 1966 to 28 February 1967
(144 days); confined from 1 March to 21 May 1967 (82 days); AWOL from
20 June to 8 November 1967 (142 days); and confined from 9 November 1967 to
9 January 1968.

11.  On 2 January 1968, the separation authority approved the
recommendation for the applicant's discharge and directed that he be
furnished a UD.  The applicant was discharged on 10 January 1968.  He had a
total of 2 months and 21 days of creditable service and had 450 days of
lost time due to AWOL and confinement.

12.  There is no evidence that the applicant applied to the Army Discharge
Review Board for an upgrade of his discharge within its 15-year statute of
limitations.

13.  The character reference letter provided by the applicant attests to
his duty performance, character, honesty, dedication, and involvement in
community activities.

14.  AR 635-212, in effect at the time, set forth the basic authority for
the separation of enlisted personnel.  Paragraph 6a(1) of the regulation
provided, in pertinent part, that members involved in frequent incidents of
a discreditable nature with civil or military authorities were subject to
separation for unfitness.  An undesirable discharge was normally considered
appropriate.

15.  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.

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s discharge proceedings appear to have been conducted in
accordance with law and regulations applicable at the time of his
separation.

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

3.  The applicant was seen by a psychiatrist and was diagnosed as having
passive aggressive personality.  The psychiatrist states that the applicant
had been AWOL on two occasions for a total of 9 months, that his judgment
was poor and, that he was not committed to productive goals.  The
evaluation revealed that the applicant was completely unmotivated for
further military service and that additional rehabilitative efforts would
be non-productive.  The applicant was found to be capable of distinguishing
right from wrong and adhering to the right.  He possessed sufficient mental
capacity to act in his own behalf in administrative procedures deemed
appropriate by command.

4.  The applicant has provided no evidence to show that his discharge was
unjust.  He also has not provided evidence sufficient to mitigate the
character of his discharge.

5.  The applicant entered AD at the age of 25.  He was married when he was
inducted and his spouse was pregnant with their fourth child.  He was
granted fourteen days ordinary leave after BCT and after his leave, he
failed to report to his AIT at Fort Knox.  The applicant instead chose to
go AWOL and to remain in that status.  The applicant had the option of
reporting to Fort Knox and informing his commander of his family problems.
He could have availed himself of assistance offered by social service
organizations specifically designed to provide assistance to Soldiers and
he could have avoided the problems he has had to endure with less than an
honorable discharge.

6.  There is no evidence in the applicant's records, and the applicant has
provided none, to show that he applied for an upgrade of his discharge to
the ADRB within its 15-year statute of limitations.

7.  The applicant's supporting character references were considered;
however, these are not sufficiently mitigating to warrant an upgrade of his
discharge to honorable.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 January 1968; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 9 January 1971.  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

____cak _  ____ena_  ___jns___  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.




                                  _________John N. Slone______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000074                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050915                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19680110                                |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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