RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 November 2005
      DOCKET NUMBER:  AR20050000386


      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. Maria C. Sanchez              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Thomas E. O'Shaughnessy, Jr.  |     |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.

2.  The applicant states, in effect, that the board of officers was unjust
and they had already assumed he was guilty before the trial.  He concludes
that prejudice was a factor and he was not properly defended.

3.  The applicant provides a Department of Veterans Affairs letter, dated
3 October 2003; an undated letter from Identity Theft Shield; a Redwood
Toxicology Laboratory letter, dated 19 November 2004; two DD Forms
214 (Armed Forces of the United States Report of Transfer or Discharge);
two National Personnel Records Center letters, dated 13 August 2004 and
10 November 2003; a Headquarters, 4th Battalion, 46th Infantry, 1st Armored
Division memorandum, dated 3 January 1970; ten letters of support; eight
certificates of achievement; a copy of his General Equivalency Diploma,
dated 2 June 1977; three letters regarding his medical conditions and 85
pages of medical documentation from the Lakeside Behavioral Health System.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel, a Veterans of Foreign Wars Service Officer, requests the
applicant's undesirable discharge be upgraded to an honorable discharge.

2.  Counsel states the applicant served honorably for the period 1961
through 1963 and rejoined the military in 1966.  Counsel continues that the
applicant knew he would be sent to Vietnam.

3.  Counsel contends that the applicant's pattern of behavior is
demonstrated in his service records during the period 1967 through 1970 and
that he suffered from post traumatic stress disorder upon his return from
Vietnam.   Counsel continues that the applicant's anti-social behavior, his
periods of AWOL, poor re-adjustment to barracks life, and the incident
where he accidentally shot a fellow Soldier were all classic symptoms of
post traumatic stress disorder.

4.  Counsel concludes the applicant was well-adjusted prior to his service
and has been an exemplary citizen during his post-service; therefore, his
discharge is now inequitable.

5.  Counsel provided a one-page statement, dated 29 March 2005.


CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 30 January 1970, the date of his separation from active duty.
The application submitted in this case is dated 6 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.  Records show the applicant served on active duty in the Army from
October 1961 until he was honorably separated in October 1963.

4.  Records also show the applicant enlisted in the Regular Army on 15
February 1966 for a period of three years.  After completion of airborne
training, he was awarded military occupational specialty 11B (Rifleman).
He served in Vietnam for the period 23 May 1966 through 8 June 1967.

5.  The applicant's service records reveal a disciplinary history that
includes his acceptance of nonjudicial punishment (NJP) under the
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on
the following six separate occasions for the offenses indicated:  on 20
January 1967, for failure to go at the time prescribed to his appointed
place of duty; on 26 February 1967, for acting disorderly in uniform in a
public place; on 18 April 1967, for being in town after normal curfew
hours; on 25 August 1967, for being absent without leave (AWOL) during the
period 9 August 1967 through 15 August 1967; on 7 May 1969, for being AWOL
during the period 2 May 1969 through 7 May 1969; and on 26 June 1969, for
AWOL (two separate periods) of 4 June 1969 through 9 June 1969 and 16 June
1969 through 18 June 1969.

6.  On 29 November 1967, a special court-martial convicted the applicant of
being AWOL (three separate occasions) from on or about 2 October 1967
through on or about 19 October 1967, from on or about 27 October 1967
through on or about 3 November 1967, and from on or about 15 November 1967
through on or about 20 November 1967.  The resultant sentence included
confinement at hard labor for six months, forfeiture of $64.00 per month
for six months, and reduction to the rank of private/pay grade E-1.
7.  On 8 November 1968, a second special court-martial convicted the
applicant of being AWOL from on or about 23 January 1968 through on or
about 20 August 1968.  The resultant sentence included confinement at hard
labor for six months and forfeiture of $73.00 per month for six months.

8.  Item 44 (Time Lost) of the applicant's DA Form 20 (Enlisted
Qualification Record) shows 266 days of AWOL and 198 days of confinement
for a total of 464 days of lost time.

9.  Mental Hygiene Consultation Service (MHCS) Certificate, dated 29 July
1969, shows the applicant was referred to the MHCS for reasons of poor
military attitude and behavior and to be cleared for discharge.  This
certificate shows that on 17 July 1969, the applicant underwent an
examination and the examining medical officer indicated that, since the
applicant's return from Vietnam in 1967, he had experienced difficulty
adjusting to a garrison situation and had received two courts-martial and
various Article 15s.  The medical officer stated that the applicant was
rational, coherent and oriented to time, place and person.  The examining
medical officer concluded that the applicant had no disqualifying mental
defects and was mentally responsible, able to distinguish right from wrong
and to adhere to the right, and had the mental capacity to understand and
participate in board proceedings.

10.  On 6 November 1969, the unit commander advised the applicant that he
was being recommended for discharge under the provisions paragraph 6a(1) of
Army Regulation 635-212 (Personnel Separations), by reason of unfitness.

11.  On 6 November 1969, the applicant consulted with counsel regarding
separation for unfitness under the provisions of paragraph 6a(1) of Army
Regulation 635-212.  The applicant requested consideration by a board of
officers and to personally appear before that board.  He elected not to
submit statements on his own behalf.

12.  On 13 November 1969, the commander approved the applicant's request to
be considered by a board of officers under the provisions of Army
Regulation 635-212.

13.  On 3 January 1970, the applicant appeared before a board of officers
with counsel.  The board found the applicant was undesirable for further
retention in the military service because of his habits and traits of
character manifested by repeated petty offenses and he was not deemed for
any additional rehabilitation. The board recommended the applicant be
discharged from the service due to unfitness with issuance of an
Undesirable Discharge Certificate.
14.  On 30 January 1970, orders were published by Headquarters, III Corps
and Fort Hood which discharged the applicant from active duty.  These
orders further indicated he would be discharged under the provisions of
Army Regulation 635-212 for unsuitability and furnished a Undesirable
Discharge Certificate (DD Form 258A).

15.  Block 11c (Reason and Authority) of the applicant's DD Form 214 shows
the applicant was separated under the provisions of Army Regulation 635-212
with a separation program number (SPN) "264."  Army Regulation 635-5-1
(Separation Program Designator (SPD) Codes), in effective at that time,
shows that SPN 264 identifies separation under Army Regulation 635-212 for
unsuitability due to character and behavior disorders.  This separation
document also confirms the applicant completed net service of 2 years, 8
months and 9 days of active military service and that he accrued a total of
464 days of lost time due to AWOL and confinement.

16.  The applicant submitted several letters of support from friends and
family which all essentially state how he is an honest, loyal, responsible,
dedicated family man, and knowledgeable employee.  The letters also further
state the applicant was exposed to Agent Orange while in Vietnam.

17.  The applicant submitted 85-pages of medical records from the Lakeside
Behavioral Health System, covering the period 9 September 1996 through
20 September 1996, showing he had undergone treatment for post traumatic
stress disorder, diabetes, and alcoholism.  These civilian medical records
do not indicate treatment for Agent Orange.

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

19.  Army Regulation 635-212 (Discharge – Unfitness and Unsuitability), in
effect at the time, set forth the basic authority, established the policy,
and prescribed the procedures for separating members for unsuitability.  An
undesirable discharge was normally considered appropriate for members
separating under these provisions.





20.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations), 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.

21.  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 his undesirable discharge should be
upgraded to a general discharge because he was not properly defended during
the hearing.

2.  Contrary to the applicant's contention, the record shows the applicant
appeared before a board of officers with counsel and also confirms that all
requirements of law and regulation were met and the applicant’s rights were
fully protected throughout the separation process.  The record further
shows the applicant’s discharge accurately reflects his overall record of
undistinguished service which includes 266 days of AWOL and 198 days of
confinement.

3.  The applicant's record of service included seven nonjudical punishments
and two special court-martials for various offenses including being AWOL,
breaking restriction, and being disrespectful in language to another
Soldier.

4.  Based on this record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  Additionally, his service is deemed unsatisfactory in
view of his bad conduct time.  Therefore, he is not entitled to either a
general or an honorable discharge.

5.  The applicant's post-service conduct reflects favorably on him.
However, good post service conduct alone is not a basis for upgrading a
discharge and does not mitigate his indiscipline in the Army, particularly
in view of the amount of time of bad time and his other offenses.
6.  In order to justify correction of a military record the applicant must
satisfactorily show, or it must otherwise satisfactorily appear, that the
record is in error or unjust.  The applicant has failed to submit
sufficient evidence that would satisfy this requirement.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 January 1970; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 29 January 1973.  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

__JA____  _TEO___  _CK_____  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.



                                     _James E. Anderholm_
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050000386                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051101                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1970/01/30                              |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |Unsuitability                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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