RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 October 2005
      DOCKET NUMBER:  AR20050005085


      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:

|     |Ms. Barbara J. Ellis              |     |Chairperson          |
|     |Mr. Hubert O. Fry, Jr.            |     |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 upgrade of his undesirable discharge to an
honorable discharge.

2.  The applicant states he served 16 months of good time before his
personal problems caused him to use poor judgment.  The applicant
continues, that he has been a good citizen since his discharge and that he
regrets the decision that he made when he was young.

3.  The applicant provides nine character letters in support of this
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 17 October 1969, the date of his discharge from active
duty.  The application submitted in this case is dated 30 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 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 1 February 1966. The applicant's records show he was
21 years old at the time he entered active duty.  He was trained in,
awarded, and served in military occupational specialty (MOS) 67N20 (Single
Rotor Helicopter Repairman) and the highest rank he attained while serving
on active duty was specialist/pay grade E-4.

4.  The applicant’s service personnel records show he was awarded the
National Defense Service Medal.

5.  On 1 December 1967, nonjudicial punishment was imposed against the
applicant for failure to report to his place of duty.  His punishment
consisted of an oral reprimand.


6.  On 14 October 1968, a special court-martial convicted the applicant of
being absent without leave (AWOL) from on or about 14 June 1968 through on
or about 5 September 1968.  The applicant's punishment consisted of
confinement at hard labor for four months and forfeiture of $70.00 per
month for four months.

7.  On 9 May 1969, a special court-martial convicted the applicant of being
AWOL from on or about 13 January 1969 through on or about 22 April 1969.
The applicant's punishment consisted of confinement at hard labor for six
months and forfeiture of $70.00 per month for six months.

8.  On 3 October 1969, a special court-martial convicted the applicant of
being AWOL from on or about 18 June 1969 through on or about 3 September
1969, and for violating his parole on 18 June 1969.  The applicant's
punishment consisted of confinement at hard labor for five months.

9.  On 4 March 1970, 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.

10.  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 elected not to provide statements on his
behalf.

11.  On 10 October 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 17 October
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 2 years, 2 months,
and 26 days creditable active military service and that he accrued a total
of 536 days of time lost due to AWOL and confinement.

12.  On 6 November 1975, the Army Discharge Review Board denied the
applicant's petition to upgrade his discharge.

13.  The applicant provided nine character reference letters which
essentially state the applicant was a law-abiding citizen who was honest,
hard working and active in his church.


14.  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.

15.  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.

16.  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.

17.  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 contends that his undesirable discharge should be
upgraded because his earlier service was good and he was young at the time
of his discharge.



2.  Records show that the applicant was 21 years of age at the time of his
offenses.  There is no evidence that indicates that the applicant was any
less mature than other soldiers of the same age who successfully completed
military service.

3.  The applicant provided several letters regarding his excellent post
service achievements and conduct.  However, good post service conduct alone
is not a basis for upgrading a discharge, and, in this case, it is not
sufficient to overcome the offenses he committed while in the Army.

4.  The applicant's record of service included one nonjudicial punishment
for failing to report to his place of duty and three special courts-martial
for being AWOL.  The applicant's records further show that he had 536 days
of lost time due to AWOL and confinement.

5.  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.  This misconduct also renders his service
unsatisfactory.  Therefore, he is not entitled to either a general
discharge or an honorable discharge.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 6 November 1975.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 5 November 1978.  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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_HOF____  _RR____  _BJE___  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.




                                     __Barbara J. Ellis_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050005085                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051019                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |AR 635-212. .                           |
|DISCHARGE REASON        |unfitness                               |
|BOARD DECISION          |Deny                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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