RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 August 2005
      DOCKET NUMBER:  AR20050003663


      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             |
|     |Mrs. Victoria A. Donaldson        |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Mr. Ronald J. Weaver              |     |Member               |
|     |Mr. Robert Rogers                 |     |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 a
general discharge.

2.  The applicant states that being absent without leave (AWOL) does not
deserve an undesirable discharge.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge) in support of this
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 26 April 1969, the date of his separation from active
duty.  The application submitted in this case is dated 6 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 and
entered active duty on 19 January 1965.  He was trained in, awarded and
served in military occupational specialty (MOS) 12A10 (Combat Construction
Specialist) and the highest rank he attained while serving on active duty
was specialist/pay grade E-4.

4.  The applicant’s record documents show that he was awarded the National
Defense Service Medal, the Vietnam Service Medal, and the Vietnam Campaign
Medal.

5.  The record reveals a disciplinary history that includes his acceptance
of nonjudicial punishment (NJP) under the provisions of Article 15 of the
Uniform Code of Military Justice (UCMJ) on the following seven separate
occasions for the offenses indicated:  6 January 1966, for missing bed
check; 14 June 1966, for disobeying a lawful order; 9 August 1966, for
being AWOL during the period 7 August 1966 through 8 August 1966; 15
December 1967, for leaving his place of duty without proper authority; 31
January 1968, for being AWOL during the period 26 January 1968 through 27
January 1968; 20 February 1968, for being AWOL during the period 10
February 1968 through 12 February 1968; and 1 July 1968, for being AWOL
during the period 26 June 1968 through 27 June 1968.

6.  On 20 March 1968, a special court-martial convicted the applicant of
being AWOL from on or about 23 February 1968 through on or about 28
February 1968, of using disrespectful language towards another Soldier, and
for breaking imposed restriction.  The resultant sentence included
confinement at hard labor for three months, forfeiture of $64.00 per month
for three months, and reduction to private/pay grade E-1.

7.  On 22 October 1968, a special court-martial convicted the applicant for
being AWOL from 6 July 1968 through 6 September 1968 and for being AWOL
from 8 September 1968 through 2 October 1968.  The resultant sentence
included confinement at hard labor for six months and forfeiture of $96.00
per month for six months.

8.  On 24 February 1969, the unit commander advised the applicant that he
was recommending the applicant’s discharge under the provisions of Army
Regulation 635-212 (Personnel Separations), by reason of unfitness.

9.  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 provided the following statement: "I do
wish a discharge for I believe that I have served my time in; and I just
can't seem to stay straight and I can't detect the reason."

10.  On 17 April 1969, the separation authority directed the applicant’s
separation under the provisions of Army Regulation 635-212 for unfitness
and that he receive an Undesirable Discharge Certificate.  On 26 April
1969, 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 3 years, 4 months,
and 2 days of creditable active military service and that he accrued a
total of 336 days of time lost due to AWOL.

11.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge within its 15-year statute of
limitations.

12.  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.

13.  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.

14.  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.  The applicant contends that his undesirable discharge should be
upgraded to a general discharge because being AWOL does not justify an
undesirable discharge.

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

3.  The applicant's record of service included seven nonjudical punishments
and two special court-martials for various offenses including being AWOL,
breaking restriction, and being disrespectful in language to another
Soldier.

4.  Based on this record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  Therefore, he is not entitled to either a general or
an honorable discharge.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 April 1969; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 25 April 1972.  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

_RJW_____  _RR___  _JEV___  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.




                                     _James E. Vick_
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050003663                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050818                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1969/04/26                              |
|DISCHARGE AUTHORITY     |AR .635-212 . . . .                     |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0000.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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