RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           15 November 2005
      DOCKET NUMBER:  AR20050003193


      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. Lisa O. Guion                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Robert L. Duecaster           |     |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 the reasons for his UD were
insufficient. He claims to have been told if he stayed six more months, he
would have received an honorable discharge.  He further states that
whatever the reasons for his discharge, it has been over 30 years and his
separation document does not even indicate why he received an UD.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 23 December 1971.  The application submitted in this case
is dated
26 October 2004.

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 he enlisted in the Regular Army and
entered active duty on 18 June 1970.  He was trained in, awarded and served
in military occupational specialty (MOS) 94A (Food Service Apprentice).
His Enlisted Qualification Record (DA Form 20) shows, in Item 33
(Appointments and Reductions), that he was promoted to private/E-2 (PV2) on
three separate occasions, and that this is the highest rank he held while
serving on active duty.  It also shows that he was reduced on at least
three separate occasions, and that he was finally reduced to private/E-1
(PV1) on 4 November 1971, and this was the grade he held on the date of
discharge.

4.  Item 44 (Time Lost Under Section 972, Title 10, United States Code and
Subsequent to Normal Date ETS) of the applicant’s DA Form 20 shows he was
reported absent without leave (AWOL) from his organization on the following
four separate occasions:  5 through 18 January 1971; 18 September through
4 October 1971; 19 June 1971; and 16 November through 14 December 1970.
His total period of time lost due to AWOL was documented to be 61 days.

5.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.  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
29 January 1971, for being AWOL from 5 through 19 January 1971, and on
20 March 1971, for carelessly discharging a fire arm around his company
area and carrying an unregistered weapon.

6.  On 2 November 1971, a special court-martial (SPCM) convicted the
applicant of being AWOL from on or about 18 September 1971 through on or
about
5 October 1971.  The resultant sentence included a reduction to PV1,
forfeiture of $95.00 per month for one month, and performance of hard labor
for 30 days.

7.  On 11 November 1971, the unit commander advised the applicant that he
was recommending him for discharge under the provisions of Army Regulation
635-212, by reason of unfitness due to misconduct.  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.

8.  On 7 December 1971, the separation authority approved the applicant’s
discharge under the provisions of Army Regulation 635-212, for unfitness,
and directed the applicant receive an UD.  On 23 December 1971, the
applicant was discharged accordingly.

9.  The DD Form 214 issued to the applicant confirms he completed a total
of
1 year, 4 months and 6 days of creditable active military service, and that
he was separated under the provisions of Army Regulation 635-212, by reason
of unfitness, which is documented by the Separation Program Number 385
listed in Item 11c (Reason and Authority) of the DD Form 214.

10.  There is no evidence of record to show that the applicant ever
submitted a request to the Army Discharge Review Board (ADRB) to request 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that there was not sufficient reason for him
to receive an UD has been carefully considered.  However, there is
insufficient evidence to support this claim.  His record reveals a
significant disciplinary history that includes his acceptance of NJP on two
separate occasions, his conviction by a SPCM, and his accrual of 61 days of
time lost due to AWOL.

2.  The evidence of record also 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 23 December 1971.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 2 December 1974.  However, he failed to 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

___SK __  ___JTM__  ___RLD_  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.




            ____Stanley Kelley _____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050003793                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005/11/15                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1971/12/23                              |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |Misconduct and AWOL                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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