RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:                              06 OCTOBER 2005
      DOCKET NUMBER:         AR20050000744


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Curtis Greenway               |     |Chairperson          |
|     |Mr. Richard Dunbar                |     |Member               |
|     |Ms. Laverne Berry                 |     |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 a
general discharge.

2.  The applicant states, in effect, that his discharge was unjust because
it was based on isolated acts of indiscipline for which he received
punishment and under today’s current standards, he would have received a
general discharge.  He goes on to state that there was no diagnosis of a
personality disorder made, as required by regulations and he should have
been discharged for unsuitability because he wanted to do the right thing
but could not.  He also states that it was unfair to give him an
undesirable discharge because he was generally a good Soldier and he was
close to finishing his tour.  He continues by stating that he was
experiencing personal problems that impaired his ability to serve and
should have been referred to counseling.  Additionally, he believes that
there is sufficient evidence to show that he suffered from a personality
disorder and should have been discharged based on that condition.

3.  The applicant provides a copy of his DD Form 214, pages from his
administrative separation packet, and records showing his conduct and
efficiency ratings.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 11 December 1970.  The application submitted in this case is
dated 18 November 2004 and was received on 14 January 2005.

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.  He enlisted in Los Angeles, California, on 29 March 1966 for a period
of 3 years and training in the Administration career management field.  He
completed his training at Fort Ord, California and Fort Benjamin Harrison,
Indiana, and was transferred to Germany on 7 December 1966.

4.  He was advanced to the pay grade of E-4 on 27 October 1967 and on
31 March 1968, he was honorably discharged for the purpose of immediate
reenlistment.  He reenlisted on 1 April 1968 for a period of 3 years,
reassignment to another unit for on the job training as a light vehicle
driver, and a variable reenlistment bonus.

5.  On 14 August 1968, he was convicted by a summary court-martial of two
specifications of sleeping on his guard post.  He was sentenced to be
reduced to the pay grade of E-3, a forfeiture of pay, extra duty and
restriction.

6.  He departed Germany on 20 November 1968 and was transferred to Fort
Hood, Texas.

7.  On 24 March 1969, he was again advanced to the pay grade of E-4.

8.  He was convicted by a special court-martial on 10 November 1969 of
being absent without leave (AWOL) from 22 September to 18 October 1969.  He
was sentenced to be reduced to the pay grade of E-3, extra duty and
restriction.

9.  On 26 March 1970, nonjudicial punishment (NJP) was imposed against him
for failure to go to his place of duty.  His punishment consisted of a
forfeiture of pay, extra duty and restriction.

10.  On 22 June 1970, NJP was imposed against him for failure to go to his
place of duty.  His punishment consisted of a forfeiture of pay and extra
duty.

11.  On 30 June 1970, NJP was imposed against him for the wrongful
appropriation of a ¼ ton truck.  His punishment consisted of a reduction to
the pay grade of E-2, extra duty and restriction.

12.  On 13 August 1970, NJP was imposed against him for being AWOL from
29 July to 2 August 1970.  His punishment consisted of a forfeiture of pay
and extra duty.

13.  The applicant underwent a psychiatric evaluation on 2 September 1970
and was found to be mentally responsible, able to distinguish right from
wrong and to adhere to the right.  The examining psychiatrist opined that
the applicant had a negative attitude towards military service and was not
motivated to complete his obligation.  He further opined that there were no
disqualifying mental defects sufficient to warrant disposition through
medical channels and recommended that he be separated through
administrative channels as he shows no potential for rehabilitation.
14.  The applicant’s commander initiated action to discharge the applicant
from the service on 19 October 1970, under the provisions of Army
Regulation       635-212, for unfitness due to his frequent involvement in
incidents of a discreditable nature with civil/military authorities.

15.  After consulting with counsel, the applicant waived all of his rights
and declined to submit a statement in his own behalf.

16.  On 4 November 1970, the appropriate authority (a lieutenant general)
approved the recommendation for discharge and directed that he be furnished
an Undesirable Discharge Certificate.

17.  Accordingly, he was discharged under other than honorable conditions
on 11 December 1970, under the provisions of Army Regulation 635-212, for
unfitness due to his frequent involvement in incidents of a discreditable
nature with civil/military authorities.  He had served 4 years, 6 months,
and 25 days of total active service and had 48 days of lost time due to
AWOL.

18.  He applied to the Army Discharge Review Board (ADRB) on 17 July 1972
for an upgrade of his discharge contending that he needed his discharge
upgraded for employment reasons and to get treatment for his service
connected injuries.  After reviewing the applicant’s records the ADRB
determined that his discharge was proper and equitable and the
circumstances and denied his request on 17 August 1973.

19.  Army Regulation 635-212, in effect at the time, set forth the basic
authority for the separation of enlisted personnel for unfitness.  It
provided, in pertinent part, that members involved in frequent incidents of
a discreditable nature with civil and/or military authorities were subject
to separation for unfitness.  An undesirable discharge was normally
considered appropriate.

20.  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 Army Discharge Review Board (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
Army Board for Correction of Military Records (ABCMR) should commence on
the date of final action by the ADRB.  In complying with this decision, the
ABCMR 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 administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors, which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate under the circumstances.

3.  The applicant’s contentions have been noted by the Board and while they
are not supported by either evidence submitted with his application or the
evidence of record, they are also not sufficiently mitigating to warrant
relief when compared to his misconduct and his otherwise undistinguished
record of service during such a short period of time.

4.  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.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 17 August 1973.
As a result, the time for the applicant to file a request for correction of
any error injustice to this Board expired on 16 August 1976.  However, the
applicant did not file within the ABCMR's 3-year statute of limitations and
has not provided 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

___CG __  ___RD __  ___LB __  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.




            ____Curtis Greenway__________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050000744                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051006                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1970/12/11                              |
|DISCHARGE AUTHORITY     |AR635-212 . . . . .                     |
|DISCHARGE REASON        |UNFIT                                   |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |583/A51.00                              |
|1.144.5000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]