RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          6 December 2005
      DOCKET NUMBER:  AR20050003250


      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. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Donald W. Steenfott           |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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.

2.  The applicant states that he completed his basic and advanced
individual training as well as his corrective training at Fort Riley,
Kansas.  He goes on to state that he was never anti-military, he was a
drunk.  He continues by stating that he has been sober for over 30 years
and while he was originally classified as a felon, he has received a full
pardon.  He also states that he holds a Federal Commercial Drivers License
(CDL) and the Patriot Act now requires a background check to maintain his
current status.  He further states that he needs his CDL to maintain his
job until he retires.  He admits that he made a mistake in his military
service but he still loves his country and has been a member of good
standing in his community.

3.  The applicant provides a copy of his pardon from the Governor of the
State of Wisconsin.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 5 November 1969.  The application submitted in this case is
dated 25 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 was born on 5 February 1947 and was inducted in Milwaukee,
Wisconsin, with a moral waiver for burglary (1965) on 21 November 1967.  He
completed his basic combat training at Fort Leonard Wood, Missouri, and was
transferred to Fort Belvoir, Virginia, to undergo his advanced individual
training (AIT) as a power generator equipment operator.

4.  The applicant went absent without leave (AWOL) on 24 March 1968 and
remained absent until he was returned to military control at Fort Riley,
Kansas, on 16 June 1968.  He again went AWOL on 24 June and remained absent
until he was returned to military control at Fort Riley on 5 July 1968,
where charges were preferred against him for the AWOL offenses.

5.  He was convicted by a special court-martial on 14 August 1968 of being
AWOL from 24 March to 16 June and 24 June to 5 July 1968.  He was sentenced
to confinement at hard labor for 4 months and a forfeiture of pay.

6.  On 18 October 1968, he was transferred to Fort Leonard Wood for duty as
a cook’s apprentice.  He again went AWOL on 11 December 1868 and on
20 March 1969, he was apprehended by civil authorities in Baraboo,
Wisconsin for assault.  On 11 April 1969, he pled guilty to the charges in
civil court and was sentenced to 6 months in the county jail.  He was
released to military authorities on 26 August 1969 and was transferred to
Fort Sheridan, Illinois, where he was subsequently transferred to Fort
Riley, where charges were preferred against him for the AWOL offense.

7.  On 7 October 1969, the applicant’s commander initiated action to
discharge the applicant under the provisions of Army Regulation 635-212 for
unfitness.  He cited the applicant’s AWOL offenses, his court-martial
conviction and his negative attitude as the basis for his recommendation.
He recommended that no further rehabilitation efforts be expended and that
the applicant receive an undesirable discharge.

8.  On 17 October 1969, after consulting with counsel, the applicant waived
all of his rights and elected not to submit a statement in his own behalf.

9.  The battalion commander recommended approval of the recommendation and
indicated that the pending court-martial charges would be dropped if the
discharge was approved.

10.  The appropriate authority (a major general) approved the
recommendation for discharge and directed that he be furnished an
Undesirable Discharge Certificate.

11.  Accordingly, he was discharged under other than honorable conditions
on
5 November 1969, under the provisions of Army Regulation 635-212, for
unfitness due to frequent involvement in incidents of a discreditable
nature with civil and military authorities.  He had served 11 months and 23
days of total active service and had 359 days of lost time due to AWOL and
confinement.


12.  There is no evidence in the available records to show 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.

13.  On 12 March 1970, he was convicted of aggravated battery and sentenced
to 5 years in prison.  On 3 November 2003, he received a full and
unconditional pardon for his offenses from the Governor of the State of
Wisconsin.

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 contentions have been noted by the Board and while the
Board commends him for his post-service rehabilitation, that in itself is
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 should have discovered the alleged error or
injustice now under consideration on 5 November 1969; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
4 November 1972.  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

__bpi___  __dws___  __eem___  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.



                                  Bernard P. Ingold
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050003250                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051206                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19691105                                |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.5100                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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