RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           22 November 2005
      DOCKET NUMBER:  AR20050005445


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Thomas A. Pagan               |     |Chairperson          |
|     |Mr. Eric N. Anderson              |     |Member               |
|     |Mr. Joe R. Schroeder              |     |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 general, under honorable
conditions discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, he was directed to accept his
discharge without regard to company or battalion level nonjudicial
punishment (NJP).  He further states he was never given the opportunity to
defend himself before a
court-martial, and he was not offered representation before he was unjustly
separated from the service without due process.

3.  The applicant provides a letter from the President and a letter from
Yale University in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 9 March 1971, the date of his final separation.  The
application submitted in this case is dated 28 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 he initially enlisted in the Regular Army
and entered active duty on 25 March 1968.  He was initially trained in and
awarded military occupational specialty (MOS) 11B (Infantryman).

4.  On 26 February 1969, the applicant was honorably discharged for the
purpose of immediate reenlistment.  On 27 February 1969, he reenlisted for
four years, and he was retrained in MOS 74D (Automated Data Processing
System Machine Operations Specialist).

5.  The applicant’s Enlisted Qualification Record (DA Form 20) shows, in
Item 33 (Appointment and Reductions), that the applicant was promoted to
private first class (PFC) on 13 January 1970, and this was the highest rank
he attained while serving on active duty.  The record documents no acts of
valor, significant achievement, or service warranting special recognition.


6.  The applicant’s disciplinary history includes his acceptance of NJP
under the provisions of Article 15 of the Uniform Code of Military Justice
(UCMJ) on the following seven separate occasions for the offense(s)
indicated:  21 April 1969, for failing to obey a lawful order; 22 May 1969,
for failing to go to his place of duty at the prescribed time and two
specification of disobeying lawful orders;
25 August 1969, for disobeying a lawful order; 30 October 1969, for leaving
his guard post before being properly relieved; 20 December 1969, for
leaving his appointed place of duty; 19 October 1970, for being absent
without leave (AWOL) for four days; and 30 November 1970, for being AWOL
for four days and for failing to report for counseling.

7.  On 11 January 1971, the unit referred the applicant for a pre-
separation psychiatric evaluation based on his intent to process the
applicant for separation under the provisions of Army Regulation 635-221,
by reason of unsuitability.  The attending physician found no psychiatric
disease and cleared the applicant for separation as deemed appropriate by
the command.

8.  On 22 January 1971, the applicant was advised of the basis for the
contemplated separation action, its effects and of the rights available to
him.  Subsequent to this counseling, the applicant waived his right to
consideration by and personal appearance before a board of officers.  He
also waived his right to representation by counsel and he elected not to
submit statement in his own behalf.  He further acknowledged that he could,
up until the date the separation authority approved his discharge, withdraw
his waiver and request that a board of officers hear his case.

9.  On 1 February 1971, the separation authority accepted the applicant’s
waiver of his right to a hearing before a board of officers.  He also
approved the applicant’s discharge under the provisions of Army Regulation
635-212, by reason of unsuitability (apathy, defective attitude and
inability to expend effort constructively), and directed he receive a GD.
On 9 March 1971, the applicant was discharge accordingly.  The separation
document (DD Form 214) he was issued confirms he completed a total of 3
years, 10 months, and 16 days of creditable active military service and had
accrued 27 days if time lost due to AWOL.

10.  On 14 June 1982, the Army Discharge Review Board (ADRB), after careful
consideration of the applicant’s case, found his discharge was proper and
equitable, and it voted to deny his request for 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 unsuitability (apathy, defective attitude and
inability to expend effort constructively).  Members separating under this
provision of the regulation could receive either and HD or GD.

12.  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 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 ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the Board 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 contention that his discharge was unjust and that he
was denied due process was carefully considered.  However, there is
insufficient evidence to support this claim.

2.  The evidence of record confirms that after being fully advised of the
basis for the contemplated separation action, its effects and of the rights
available to him, the applicant voluntarily waived his right to
consideration of his case by a board of officers and his right to
representation by counsel.  His discharge was processed in accordance with
the applicable regulation and all requirements of law and regulation were
met, and his rights were fully protected throughout the separation process.


3.  The evidence of record also reveals an extensive disciplinary history
on the applicant that includes his acceptance of NJP under Article 15 of
the UCMJ on seven separate occasions.  This clearly diminished the quality
of his service below that meriting a fully honorable discharge.  It is also
evident that his chain of command attempted to rehabilitate him through
counseling and NJP; however, he failed to respond positively to these
efforts.  As a result, it is concluded that his discharge accurately
reflects his overall 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 reviewed by the ADRB on 14 June 1982.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 13 June 1985.  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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___TAP _  ___ENA _  __JRS __  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.




            ____Thomas A. Pagan__
                    CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050005445                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/11/22                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1971/03/09                              |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |Unsuitability                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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