RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 November 2005
      DOCKET NUMBER:  AR20050002446


      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. Ronald DeNoia                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Thomas A. Pagan               |     |Chairperson          |
|     |Mr. Eric N. Anderson              |     |Member               |
|     |Mr. Joe R. Schroeder              |     |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 upgrade of his undesirable discharge.

2.  The applicant provides no statements to support his application.

3.  The applicant provides no documents to support his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 13 March 1970.  The application submitted in this case is dated
15 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 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 entered into the Army on 31 July 1967.  Upon completion
of basic training and advanced individual training he was awarded the
military occupation specialty (MOS) 63B (Wheel Vehicle Repairman). The
applicant served in Vietnam from 18 December 1967 through 14 December 1968.

4.  Headquarters, Special Troops, Fort Polk, Louisiana Special Court-
Martial Order Number 568, dated 12 April 1969, shows the applicant was
tried on 10 April 1969, before a Special Court-Martial for being absent
without leave (AWOL) from 24 February 1969 until 6 April 1969. The
applicant pled guilty and was found guilty of this charge.  The military
judge sentenced the applicant to be confined at hard labor for 2 months and
to forfeit $73.00 per month for 4 months. The convening authority suspended
the sentence to confinement, but later vacated the suspension after the
applicant went AWOL a second time.

5.  Headquarters, Special Troops, Fort Polk, Louisiana Special Court-
Martial Order Number 1218, dated 2 September 1969, shows the applicant was
tried on 27 August 1969, before a Special Court-Martial for being absent
without leave (AWOL) from 24 June 1969 until 14 August 1969. The applicant
pled guilty and was found guilty of this charge.  The military judge
sentenced the applicant to be confined at hard labor for 6 months, to
forfeit $82.00 per month for 6 months, and to be reduced to the grade of
private/E-1.  Effective 10 December 1969, the unexecuted portion of the
sentence to confinement to hard labor and the forfeitures were remitted by
Special Court-Martial Order 1027, US Army Correctional Training Facility,
Fort Riley, Kansas, dated 2 December 1969.

6.  Although there is no documentation of a third court-martial, records
show that the applicant, in a signed affidavit, admits that after being
released from confinement on 10 December 1969 he went AWOL until 20 January
1970.

7.  On 9 March 1970, the unit commander initiated a request for elimination
under the provisions of AR 635-212.  His reason for the recommended action
was that the applicant "has been court-martialed three (3) times with a
total of three (3) specifications of AWOL."

8.  Headquarters, Special Troops, Fort Polk, Louisiana Special Orders
Number 070, dated 13 March 1970, discharged the applicant with an
Undesirable Discharge Certificate with a character of service of under
other than honorable conditions, under the provisions of AR 635-212.

9.  There is no evidence in the available records to show that the
applicant applied to the Army Discharge Review Board for an upgrade of his
discharge within that board’s 15-year statute of limitation.

10.  Army Regulation 635-212 (Discharge-Unfitness and Unsuitability) 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.

11.  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.

12.  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.  In the absence of evidence to the contrary, it must be presumed that
the applicant’s administrative separation was accomplished in compliance
with applicable regulations with no violations or procedural errors which
would tend to jeopardize his rights.

2.  There is no evidence which shows that his discharge processing was
flawed or otherwise improper.  The available records show that the
applicant was properly and equitably discharged in accordance with the
regulations in effect at the time.  Therefore, in the absence of evidence
to the contrary, it is determined that all requirements of law and
regulations were met and that the type of discharge and reason for
separation were appropriate considering all the facts of the case.

3.  The applicant’s record of service included three Courts-Martial, and
241 days of lost time as a result of AWOL and confinement.

4.  As a result of the above facts, it is evident that his quality of
service during his enlistment did not meet the standards of acceptable
conduct and performance of duty for Army personnel.  Therefore, he is not
entitled to an honorable characterization of service.

5.  Furthermore, the nature and extent of the applicant's undisciplined
behavior and his record of judicial punishment renders his service
unsatisfactory.  Therefore he is not entitled to a general discharge.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 13 March 1970; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 12 March 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

__tap___  __ena___  __jrs___  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.



                                        Thomas A. Pagan
                                  ______________________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050002446                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051122                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19700313                                |
|DISCHARGE AUTHORITY     |AR635-212 . . . . .                     |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0133.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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