RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          6 December 2005
      DOCKET NUMBER:  AR20050004121


      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 to a
general discharge.

2.  The applicant states, in effect, that he was unjustly discharged with a
characterization of service of under other than honorable conditions, that
he was accused of committing offenses for which no punishment was imposed,
and those offenses were used in determining the character of his service.
He also contends that his commander was a racist and that he was treated
unfairly.  He also contends that the failure to timely file is the result
of his records being lost and his attempting to obtain copies of those
records since 1975.  However, the failure by the government prevented
earlier application and it should not be held against him.

3.  The applicant provides an eight-page memorandum explaining his position
and an exhibit index listing 13 exhibits submitted with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 15 October 1969.  The application submitted in this case is
dated 9 March 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 enlisted in Memphis, Tennessee, on 6 November 1967 for a period of
3 years and training as a lineman.  He completed his basic combat training
at Fort Campbell, Kentucky and his advanced individual training (AIT) at Ft
Gordon, Georgia.

4.  Upon completion of his AIT, he was transferred to Germany on 10 June
1968 and was initially assigned to Company A, 16th Signal Battalion.  He
was subsequently reassigned to Company D, 16th Signal Battalion and
reenlisted on 8 July 1968, for a period of 3 years.  On 20 July 1968, he
was reassigned to Fort Hood, Texas with his unit.
5.  On 25 February 1969, he was transferred to Vietnam and was assigned to
the 578th Signal Company in Phu Thanh, for duty as a lineman.

6.  On 21 April 1969, nonjudicial punishment (NJP) was imposed against him
for two specifications of disobeying a lawful order from a superior
noncommissioned officer and a superior commissioned officer, for being
disrespectful in language towards a superior noncommissioned officer
(language was racist in nature), and for two specifications of failure to
go to his place of duty.  His punishment consisted of a reduction to the
pay grade of E-2, a forfeiture of pay, extra duty, and restriction.  The
applicant elected not to appeal his punishment.

7.  He was reassigned to Company D, 459th Signal Battalion and on 26 May
1969, his commander initiated action to bar the applicant from
reenlistment.  He cited as the basis for his recommendation, the
applicant’s record of habitual misconduct in the unit, habitually being
late for formation, continually disappearing from his place of duty, his
failure to follow orders, his disciplinary record, and his failure to
respond to rehabilitation efforts.

8.  The applicant elected to submit a statement in his own behalf, whereas
he asserted that if given the chance, he could prove himself as useful as
any other member of the unit and stated that he would like to be the one to
make the decision to stay in the Army of get out when the time came.

9.  On 7 June 1969, NJP was imposed against him for disobeying a lawful
order and being apprehended in an off-limits area, for resisting
apprehension, and for unlawfully carrying a concealed weapon.  His
punishment consisted of a reduction to the pay grade of E-1 (suspended for
60 days) and a forfeiture of pay. He did not appeal the punishment.

10.  On 19 July 1969, the appropriate authority approved the bar to
reenlistment action.

11.  On 18 August 1969, charges were preferred against the applicant for
the unlawful possession of marijuana, for striking another soldier in the
face with his hand, and for failure to go to his place of duty.  There is
no indication in the available records to show that these charges were ever
referred to trial by    court-martial or that any punishment resulted from
those charges.

12.  On 1 September 1969, NJP was imposed against him for breaking
restriction.  His punishment consisted of a reduction to the pay grade of E-
1 and restriction for 14 days.  He did not appeal the punishment.

13.  On 30 September 1969, the applicant’s commander initiated action to
discharge the applicant from the service under the provisions of Army
Regulation 635-212 for unfitness.  He cited as the basis for his
recommendation the applicant’s unsatisfactory performance, repeated
commission of petty offenses and habitual shirking, his failure to respond
to rehabilitation attempts by the chain of command, his disciplinary
record, his intentional shirking of his duties, and his failure to respond
to repeated counseling sessions.  He recommended that the applicant receive
an undesirable discharge.

14.  After consulting with counsel, the applicant waived all of his rights
and elected not to submit a statement in his own behalf.

15.  On 13 October 1969, the appropriate authority (a brigadier general)
approved the recommendation for discharge and directed that he be furnished
an Undesirable Discharge Certificate.

16.  Accordingly, he was transferred to Fort Lewis, Washington, where he
received an undesirable discharge, characterized as under other than
honorable conditions on 15 October 1969, under the provisions of Army
Regulation
635-212, for unfitness, due to his frequent involvement in incidents of a
discreditable nature with civil/military authorities.  He had served 2
years of total active service.

17.  On 1 August 1979, he applied to the Army Discharge Review Board (ADRB)
for an upgrade of his discharge contending that he was discriminated
against by his commanding officer because his only crime was being black
and that he smoked marijuana, which the commanding officer could not stand.
 The applicant was granted a personal appearance before the travel panel of
that Board in Jackson, Mississippi on 16 November 1981 and was represented
by counsel.

18.  On 2 December 1981, after careful consideration of the testimony
presented and the evidence of record, the ADRB determined that under the
circumstances, the applicant’s discharge was both proper and equitable and
voted to deny his request for an upgrade of his discharge.

19.  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.


20.  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 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; however, they
are not sufficiently mitigating to warrant relief when compared to his
misconduct and his otherwise undistinguished record of 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 exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 2 December 1981.
As a result, the time for the applicant to file a request for correction of
any error injustice to this Board expired on 1 December 1984.  The
applicant did not file within the ABCMR's 3-year statute of limitations and
has not provided 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                 |AR20050004121                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051206                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1969/10/15                              |
|DISCHARGE AUTHORITY     |AR635-212                               |
|DISCHARGE REASON        |UNFIT/fi                                |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |583/A51.00                              |
|1.144.5000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]