RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          10 November 2005
      DOCKET NUMBER:  AR20050001948


      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:

|     |Ms. Margaret K. Patterson         |     |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 that his undesirable discharge be upgraded to
honorable.

2.  The applicant states that his discharge should be upgraded because he
felt that the Vietnam War was wrong.  He further states that he has had
medical complications since he contracted pneumonia in basic training.

3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 3 October 1967.  The application submitted in this case is
dated 30 December 2004 and was received on 11 February 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 Atlanta, Georgia, on 24 October 1966 for a period of 3
years.  He completed his basic combat training at Fort Benning, Georgia,
and was transferred to Fort Eustis, Virginia, to undergo his advanced
individual training (AIT).

4.  On 20 March 1967, he went absent without leave (AWOL) and remained
absent until he was returned to military control at Fort McPherson,
Georgia, on 27 April 1967.

5.  On 18 May 1967, he was convicted by a special court-martial at Fort
McPherson of being AWOL from 20 March until 26 April 1967.  He was
sentenced to confinement at hard labor for 2 months and a forfeiture of
pay.

6.  He was transferred to Fort Lee, Virginia, on 20 June 1967 to undergo a
different AIT and on 30 June 1967, he again went AWOL and remained absent
until he was again returned to military control at Fort McPherson on 20
August 1967, where charges were preferred against him for the AWOL offense.

7.  On 29 August 1967, he was convicted by a special court-martial of being
AWOL from 30 June to 19 August 1967.  He was sentenced to confinement at
hard labor for 2 months and a forfeiture of pay.

8.  He underwent a neuropsychiatric examination on 6 September 1967 and was
deemed mentally responsible, able to distinguish right from wrong, and able
to adhere to the right.  The examining officials diagnosed him as having a
passive aggressive personality and opined that additional rehabilitation
efforts would probably be non-productive because he was unmotivated for
further service and was not committed to any productive goals.  He
recommended that the applicant be discharged under the provisions of Army
Regulation 635-212 for unfitness.

9.  On 15 September 1967, the applicant’s commander initiated action to
separate him from the service under the provisions of Army Regulation 635-
212 for unfitness and also advised the applicant of his rights.  The
commander cited his disciplinary record, the applicant’s repeated comments
to the confinement officer that he desired to be discharged under other
than honorable conditions regardless of the consequences he would face in
civilian life, his demonstrated defective habits, irresponsibility,
inability to profit from experience, and his inability to put off the
pleasures and impulses of the moment as the basis for his recommendation.

10.  After consulting with counsel, the applicant waived all of his rights
and declined the opportunity to submit matters in his own behalf

11.  The appropriate authority (a major general) approved the
recommendation on 26 September 1967 and directed that he be furnished an
Undesirable Discharge Certificate.

12.  Accordingly, he was discharged under other than honorable conditions
on 3 October 1967 under the provisions of Army Regulation 635-212 for
unfitness.  He had served 5 months and 17 days of total active service and
had 169 days of lost time due to AWOL and confinement.  He had never
completed his training and was never advanced beyond the pay grade of E-1.

13.  There is no evidence in the available records to indicate that he ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that board’s 15-year statute of limitations.
14.  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.

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 contention that he did not agree with the Vietnam War
has been noted by the Board and while his contention is not supported by
either evidence submitted with his application or the evidence of record,
it is 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.  It is also noted that the Vietnam War was ongoing when he enlisted in
the Regular Army and he made no declaration at the time of his enlistment
that he was a conscientious objector nor did he mention it during his
service when he had the opportunity to submit matters in his own behalf.

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 should have discovered the alleged error or
injustice now under consideration on 3 October 1967 therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 2 October 1970.  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

__mkp___  __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.



                                  Margaret K. Patterson
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050001948                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051110                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1967/10/03                              |
|DISCHARGE AUTHORITY     |AR635-212 . . . . .                     |
|DISCHARGE REASON        |UNFIT                                   |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |583/A51.00                              |
|1.144.5000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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