RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 September 2005
      DOCKET NUMBER:  AR20050006081


      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. Rene’ R. Parker               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Richard T. Dunbar             |     |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 under other than honorable conditions
discharge be upgraded.

2.  The applicant states, in effect, that his age and mental condition were
not taken into consideration.

3.  The applicant provides a copy of his report of medical examination and
a medical release/physician’s statement to support his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 3 November 1967, the date of his discharge.  The
application submitted in this case is dated 12 April 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 enlisted in the Regular Army and
entered active duty on 2 November 1966.  He was 18 years old at the time of
enlistment. The applicant completed basic training, but there is no
evidence that he completed advanced individual training.

4.  On 21 February 1967, nonjudicial punishment (NJP) was imposed against
the applicant for being off post without an authorized pass; breaking
restriction; and failure to be at his appointed place of duty.  His
punishment consisted of forfeiture of $20.00 per month for one month,
restriction to the company area and/or place of duty for fourteen days, and
extra duty for fourteen days.

5.  On 6 April 1967, the applicant was convicted by a special court-martial
for being absent without leave (AWOL) for the period 5 March 1967 through 5
April 1967.  His punishment consisted of confinement at hard labor for six
months and forfeiture of $60.00 per month for six months.

6.  On 25 August 1967, the applicant was convicted by a special court-
martial for three separate incidents of AWOL totaling 36 days.  His
punishment consisted of confinement at hard labor for six months and
forfeiture of $60.00 per month for six months.

7.  On 25 September 1967, the applicant underwent a psychiatric evaluation
by a psychiatrist in the Medical Corps at Fort Gordon, Georgia.  The
psychiatrist diagnosed the applicant with emotionally unstable personality,
chronic, severe, manifested by nervousness and poor impulse control with
frequent AWOLs.  The psychiatrist also noted a predisposition for severe
lifelong marginal social adjustment and conflicts with authority.

8.  The psychiatrist found there was no evidence of any mental condition
which would warrant consideration for treatment, hospitalization, or other
disposition via medical channels.  The psychiatrist further stated the
applicant was capable of distinguishing right from wrong and of adhering to
the right.  The psychiatrist strongly recommended the applicant be
administratively separated under the provisions of Army Regulation 635-212.

9.  On 3 October 1967, the unit commander notified the applicant of the
proposed discharge action for unfitness under the provisions of Army
Regulation 635-212.

10.  On 10 October 1967, the applicant consulted with military counsel.
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, to personal appearance
before a board of officers, and to counsel.  He also elected not to submit
statements on his behalf.

11.  The applicant also acknowledged that he may be furnished an
Undesirable Discharge Certificate; that he may be deprived of many or all
Army benefits; that he may be ineligible for many or all Veterans
Administration benefits; and that he may expect to encounter substantial
prejudice in civilian life because of discharge under other than honorable
conditions.

12.  On 12 October 1967, the unit commander forwarded the recommendation
for the applicant's separation under the provisions of Army Regulation 635-
212 for unfitness based on the applicant's record of indiscipline.




13.  The lieutenant colonel in the position of acting commander of
Headquarters, Special Troops at Fort Gordon, Georgia, recommended approval
of the discharge action.  He also recommended that the applicant be issued
an Undesirable Discharge Certificate.

14.  On 23 October 1967, the major general in command of Fort Gordon,
Georgia, approved the applicant's discharge under the provisions of Army
Regulation 635-212 with an Undesirable Discharge Certificate.

15.  The applicant's DD Form 214 (Armed Forces of the United States Report
of Transfer or Discharge) shows that the applicant was discharged under
other than honorable conditions on 3 November 1967.  The applicant had 6
months and 3 days of creditable service and 183 days lost due to AWOL and
confinement.

16.  In support of his application the applicant provided a copy of his
Report of Medical Examination, dated 13 October 1967.  This report of
medical examination contains the entry “42 Personality emotionally
unstable” under the heading "CLINICAL EVALUATION."

17.  The report of medical examination, which is authenticated by a medical
corps officer also shows in item 77 "The examinee is qualified for
SEPARATION (212)."

18.  The applicant also provided a 17 February 2005 medical
release/physician’s statement completed by a medical doctor from the Centro
Vicente Homeless Clinic.  This physician found the applicant is unable to
work or participate in activities to prepare for work due to physical and
mental problems.  The physician also found the applicant’s disability is
permanent.

19.  Army Regulation 635-212 (Discharge - Unfitness and Unsuitability), in
effect at the time, set forth the basic authority for the elimination of
enlisted personnel for unsuitability and for unfitness.  Paragraph 6 of the
regulation provided, in pertinent part, that an individual was subject to
separation for unfitness because of frequent incidents of a discreditable
nature with civil or military authorities; sexual perversion including but
not limited to lewd and lascivious acts, indecent exposure, indecent acts
with or assault on a child; drug addiction or the unauthorized use or
possession of habit-forming drugs or marijuana; an established pattern of
shirking; and an established pattern of dishonorable failure to pay just
debts or to contribute adequate support to dependents (including failure to
comply with orders, decrees or judgments).  When separation for unfitness
was warranted an undesirable discharge was normally considered appropriate.
20.  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.

21.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because of
his age and the fact that he was diagnosed with a mental condition.

2.  Evidence of record confirms that all requirements of law and regulation
were met and the applicant’s rights were fully protected throughout the
separation process.  The record further shows the applicant’s discharge
accurately reflects his overall record of service.

3.  The records show that the applicant was 18 years old 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.  Therefore, the contention by the applicant that his age
led to his indiscipline is not sufficient as a basis for upgrading his
discharge.

4.  Military medical records show the applicant was diagnosed with
“unstable emotional personality.”  However, competent military medical
authorities also determined that at the time of his separation, the
applicant had no condition which warranted treatment in medical channels
and he was competent and able to distinguish right from wrong.  In view of
these facts, the applicant's contention that his mental condition led to
his indiscipline is also not sufficient as a basis to grant relief in this
case.

5.  The applicant's record of service included one nonjudical punishment
and two special courts-martial for AWOLs in excess of 183 days lost due to
AWOL and confinement.

6.  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 and lost time also renders his service
unsatisfactory. Therefore, he is not entitled to either a general or an
honorable discharge.

7.  In order to justify correction of a military record the applicant must
satisfactorily show, or it must otherwise satisfactorily appear, that the
record is in error or unjust.  The applicant has failed to submit
sufficient evidence that would satisfy this requirement.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 3 November 1967; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on     2 November 1970.  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

_SK____  _RTD___  _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.




                                    ___Stanley Kelley____
                                            CHAIRPERSON


INDEX

|CASE ID                 |AR20050006081                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/09/01                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19671103                                |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |UNFIT                                   |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0133                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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