RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          13 December 2005
      DOCKET NUMBER:  AR20050004681


      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:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Mr. Melvin H. Meyer               |     |Member               |
|     |Mr. Allen L. Raub                 |     |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 an
honorable discharge or at least a general discharge.

2.  The applicant states that he served 35 months in the Army, of which 1
year was spent in Vietnam.  He goes on to state that he is 53 years of age
and all his life he has had difficulty getting a good job because of his
discharge.  He further states that he has medical issues and is in dire
need of assistance from the Department of Veterans Affairs (VA).  He also
states that he has been clean and stayed out of trouble, that he has lived
a straight life and now has a son in the Army.

3.  The applicant provides copies of his reports of separation (DD Form
214).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 9 August 1971.  The application submitted in this case is dated
18 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 Detroit, Michigan, on 10 September 1968 for a period of
2 years.  He completed his training at Fort Leonard Wood, Missouri, and was
transferred to Germany in February 1969, for duty as a pioneer.

4.  He was honorably discharged on 29 July 1969 and reenlisted on 30 July
1969, for a period of 3 years and assignment to Vietnam.  He remained in
Germany until 20 August 1969, when he departed for Vietnam.

5.  He arrived in Vietnam on 10 October 1969 and was assigned to the 26th
Engineer Battalion, 23rd Infantry Division (AMERICAL).

6.  On 14 August 1970, nonjudicial punishment (NJP) was imposed against him
for being disrespectful in language towards a superior noncommissioned
officer.  His punishment consisted of a forfeiture of pay.

7.  On 12 September 1970, NJP was imposed against him for dereliction of
duty by failing to arm himself with his weapon and ammunition after being
posted as a sentinel.  His punishment consisted of a reduction to the pay
grade of E-2 and a forfeiture of pay.

8.  On 3 October 1970, NJP was imposed against him for disobeying a lawful
order from a superior commissioned officer.  His punishment consisted of a
forfeiture of pay.

9.  He departed Vietnam on 8 October 1970 and was transferred to Fort Hood,
Texas.

10.  On 20 January 1971, NJP was imposed against him for being
disrespectful in language towards a superior noncommissioned officer.  His
punishment consisted of a reduction to the pay grade of E-1 (suspended for
60 days) and a forfeiture of pay.

11.  On 1 February 1971, NJP was imposed against him for being absent
without leave (AWOL) from 2 January to 18 January 1971.  His punishment
consisted of a reduction to the pay grade of E-2 (suspended for 30 days),
extra duty and restriction.

12.  On 18 February 1971, the applicant’s commander initiated action to bar
the applicant from reenlistment.  He cited as the basis for his
recommendation the applicant’s disciplinary record, his unsatisfactory
performance, being unable to work without constant supervision and that he
had been a constant problem and detriment to the unit since his arrival.
The applicant acknowledged that he understood the commander’s
recommendations and elected not to submit a statement in his own behalf.
The appropriate authority approved the bar to reenlistment on 23 February
1971.

13.  On 9 March 1971, NJP was imposed against him for three specifications
of disobeying lawful orders from superior noncommissioned officers and two
specifications of being disrespectful in language towards superior
noncommissioned officers.  His punishment consisted of a forfeiture of pay,
extra duty and restriction.

14.  On 8 April 1971, NJP was imposed against him for driving without
possession of his driver’s license, failure to properly display his vehicle
decal and driving without headlights.  His punishment consisted of
restriction for 14 days.

15.  On 1 July 1971, he was convicted by a summary court-martial of being
disrespectful in language towards a superior noncommissioned officer.  He
was sentenced to be reduced to the pay grade of E-1, confinement at hard
labor for 15 days and a forfeiture of pay.

16.  On 6 July 1971, the applicant’s commander submitted a recommendation
to discharge the applicant under the provisions of Army Regulation 635-212
for unfitness due to habits and traits of character manifested by repeated
petty offenses, disrespect towards authority, habitual shirking and
disobeying of orders, being a former heroin addict by admission and being
suspect of being a heroin user at present.  His commander also indicated
that the applicant had been enrolled in the Drug Amnesty Program in April
1971, but he dropped out stating that it was a farce.  The applicant was
also witnessed injecting something into his arm on 5 July 1971.

17.  After consulting with counsel, the applicant waived all of his rights
and declined the opportunity to submit a statement in his own behalf.

18.  On 29 July 1971, the appropriate authority (a major general) approved
the recommendation for discharge and directed that he be furnished an
Undesirable Discharge Certificate.

19.  Accordingly, he was discharged under other than honorable conditions
on 9 August 1971, under the provisions of Army Regulation 635-212, for
unfitness.  He had served 2 years, 9 months and 20 days of total active
service and had 35 days of lost time.  At the time of his discharge he was
also informed of the procedures for applying to the Army Discharge Review
Board for an upgrade of his discharge.

20.  There is no indication 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.

21.  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; however, they
are not sufficiently mitigating to warrant relief when compared to his
repeated 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 should have discovered the alleged error or
injustice now under consideration on 9 August 1971; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 8 August 1974.  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

__slp___  __mhm___  __alr___  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.



                                  Shirley L. Powell
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050004681                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051213                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1971/08/09                              |
|DISCHARGE AUTHORITY     |AR635-212 . . . . .                     |
|DISCHARGE REASON        |UNFIT                                   |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |583/A51.00                              |
|1.144.5000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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