RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 October 2005
      DOCKET NUMBER:  AR20050003136


      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. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Allen L. Raub                 |     |Member               |
|     |Ms. Linda D. Simmons              |     |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 discharge be upgraded to an
honorable or general discharge under honorable conditions.

2.  The applicant states, in effect that the reason why he left the Army
and went absent without leave (AWOL) was because a recruiting officer
guaranteed that they recognized “Common Law “marriages and that they would
receive benefits from the Army.  He believed that at least his wife would
be receiving money because they already had two children.  He states in
effect, that the first month he was in the Army he sent his check to his
wife because she had not received any payment.  He was still having
problems with his wife receiving payment so he went to Finance and finance
told him that they did not recognize common law marriages and no one helped
him to straighten things out.  Therefore, when he received his second
paycheck he went home to take care of his family and he learned that his
wife was pregnant again.  He was home for 3 to 4 months, helping his family
to be sure that they were secure and then he turned himself in. He further
stated that he received advice from a chaplain and the chaplain told him to
go home and take care of his family, so he went home again.  He was picked
up by the Army again and was court-martialed where he received 6 months in
the stockade.  He was en route to Fort Riley Kansas, but instead he went
AWOL for home again.  He only received $20.00 pay, he was not paid for
6 months so he went AWOL again.  While he was in AWOL status, the baby his
wife was carrying was still born, he had to take care of the burial and his
wife went into a depression and would not take care of the other children.
His wife was depressed for 2 months.

3.  The applicant provides a self authored personal appeal and a copy of
Certificate of Fetal Death in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 28 April 1970, the date of his separation from
active duty.  The application submitted in this case is dated 22 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’s record shows that he enlisted in the Regular Army on 26
June 1968.

4.  On 6 May 1969, the applicant was convicted by a Special Court-Martial
(SPCM) of two specifications of being AWOL from 5 to 29 August 1968 and
from 5 September 1968 to 18 April 1969.  He was sentence to confinement at
hard labor for 6 months and to forfeit $40.00 pay per month for 6 months.

5.  On 26 March 1970, the applicant was convicted by a SPCM of being AWOL
from 31 July 1969 to 9 March 1970.  He was sentence to confinement at hard
labor for 4 months and to forfeit $25.00 pay per month for 4 months.

6.  On 18 March 1970, the applicant underwent a separation medical
examination and was found fit for retention.

7.  On 27 March 1970, the applicant underwent a psychiatric evaluation and
was found mentally responsible to distinguish right from wrong and adhere
to the right.  He was mentally competent to understand and participate in
the board proceedings.  He had no mental or physical disease or defect
sufficient to warrant discharge through medical channels and was
psychiatrically cleared for any administrative or disciplinary action.  It
was recommended that the applicant be separated from the service under the
provisions of Army Regulation 635-212, for unfitness.

8.  On 1 April 1970, the applicant was advised by his company commander
that he was being recommended for discharge under the provisions of Army
Regulation 635-212, by reason of unfitness.  The recommendation was based
on the applicant’s two courts-martial conviction for being AWOL, for his
dislike for military service, his lack of self-motivation and his negative
attitude.

9.  On the same day, 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.  The applicant did not submit a
statement in his own behalf.

10.  On 24 April 1970, the separation authority directed the applicant’s
discharge under the provisions of Army Regulation 635-212 for unfitness and
that he receive an Undesirable Discharge Certificate.  On 28 April 1970,
the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of
the United States Report of Transfer or Discharge) issued to him at the
time, confirms the applicant completed a total of 2 months, and 1 days of
creditable active military service and that he accrued a total of 630 days
of time lost due to AWOL.

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.  There is no indication that the applicant applied to the Army
Discharge Review Board (ADRB) for an upgrade of his discharge within its 15
year statue of limitation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his discharge should be upgraded
because he had family problems and a recruiter lied to him about the Army
not recognizing common law marriages, was carefully considered and found to
have insufficient merit in this case.

2.  The applicant’s military record shows that he had an extensive
disciplinary history of military infraction and based on his record of
indiscipline, the applicant's service clearly shows that his discharge was
appropriate because the quality of service determined at the time of
discharge was not consistent with the Army’s standards for acceptable
personal conduct and performance of duty by military personnel.  Therefore,
he is not entitled to an upgrade of his discharge.

3.  After carefully evaluating the evidence submitted by the applicant and
the evidence of record in this case, it is determined that the applicant’s
discharge processing was conducted in accordance with law and regulations
applicable at the time and that the character of his service is
commensurate with his overall record of military service.  The evidence of
record confirms that the applicant’s rights were fully protected throughout
the separation process.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 April 1970; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
27 April 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

__MHM__  __ALR __  __LDS __  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.




                                  _____Melvin H. Meyer_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050003136                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051027                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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