RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         18 October 2005
      DOCKET NUMBER:  AR20050002653


      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. Yvonne Foskey                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Kenneth W. Lapin              |     |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 in effect, that his undesirable discharge (UD)
be upgraded.

2.  The applicant states, in effect that at the time he was very young (16
years old) and did not understand a lot of things.  He also states, in
effect, that the Army played with him and treated him badly when he wanted
to be discharged from the military to help his mother who had become ill.
He further states that he was told that if he accepted his discharge under
Army Regulation 635-212 that after six months he could have his discharge
upgraded.

3.  The applicant provides no documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 12 June 1970.  The application submitted in this case is
dated
24 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 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 record shows that he was born on 11 June 1951 and
enlisted in the Regular Army and entered active duty on 8 October 1968.
The record also confirms that the highest rank he attained while serving on
active duty was private first class/E-3 (PFC).  His record documents no
acts of valor, significant achievement, or service warranting special
recognition.

4.  On 21 March 1969, the applicant accepted nonjudicial punishment (NJP)
under the provisions of Article 15 of the Uniform Code of Military Justice
(UCMJ) for being absent without leave (AWOL) from his unit on or about 22
February 1969 until on or about 17 March 1969.  His punishment for this
offense included a reduction to private (E-2), a forfeiture of $51.00 and
14 days extra duty.

5.  On 28 April 1969, the applicant accepted NJP for being AWOL from his
unit on or about 0600 hours 21 April 1969 until on or about 2030 hours 21
April 1969. His punishment for this offense included a reduction to private
(E-1), a forfeiture of $31.00 and 14 days extra duty.

6.  On 26 March 1970, a SPCM convicted the applicant of violating Article
86 of the UCMJ by being AWOL on or about 4 May 1969 until on or about 29
January 1970.  The resultant sentence included confinement at hard labor
for four months.

7.  On 3 June 1970, the unit commander advised the applicant that he was
recommending the applicant’s discharge under the provisions of Army
Regulation (AR) 635-212, by reason of his involvement in frequent incidents
of a discreditable nature with military authorities.

8.  The applicant consulted with legal counsel and after being advised of
the basis for the contemplated separation, its effects and the rights
available to him, he waived his right to consideration of his case by a
board of officers, personal appearance before a board of officers and his
right to counsel.  He further elected not to make a statement in his own
behalf.

9.  On 8 June 1970, the separation authority approved the applicant’s
discharge and directed that he receive an UD.  On 12 June 1970, the
applicant was discharged accordingly.  The DD Form 214 issued to the
applicant on the date of his separation confirms that he completed a total
of 6 months of creditable active military service, and that he accrued a
total of 424 days of lost time due to AWOL and confinement.

10.  On 20 March 1981, after finding his discharge was proper and
equitable, the Army Discharge Review Board (ADRB) denied the applicant’s
request for an upgrade of his discharge.

11.  Army Regulation 635-212, in effect at the time, set forth the basic
authority, established the policy, and prescribed the procedures for
separating members for unfitness.  An undesirable discharge was normally
considered appropriate for members separating under these provisions

12.  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 contention that due to his age he didn’t understand a
lot of things while serving in the military and that he was treated badly
after requesting to be discharged when his mother became ill was carefully
considered.
There is no evidence of record that shows the applicant was treated badly
or that his discharge was improper, therefore these factors are not
sufficiently mitigating to warrant an upgrade of his discharge at this late
date.

2.  The evidence of record confirms the applicant was notified of the
contemplated separation action by his unit commander and that he consulted
legal counsel.  It further shows that after being advised of the basis for
the contemplated separation action and its possible effects, he voluntarily
elected to waive his right to have his case considered by a board of
officers and he elected not to submit a rebuttal statement in his own
behalf.

3.  The record further confirms that all requirements of law and regulation
were met and the applicant’s rights were fully protected throughout the
separation process.  Finally, the record shows applicant’s discharge
accurately reflects his overall record of undistinguished service.

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 should have discovered the alleged error or
injustice now under consideration on 20 March 1981; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
19 March 1984.  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

___JNS _  __LDS __  ___KWL _  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                 |AR20050002653                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-10-18                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1970/06/12                              |
|DISCHARGE AUTHORITY     |AR635-212 . . . . .                     |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          | DENY                                   |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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