RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          1 December 2005
      DOCKET NUMBER:  AR20050006103


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Meixell                  |     |Chairperson          |
|     |Ms. Maribeth Love                 |     |Member               |
|     |Mr. Richard Sayre                 |     |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 undesirable discharge be
upgraded.

2.  The applicant states by definition the term “undesirable” means
something not particularly wanted and does not suit a particular need.  He
contends that his military occupational specialty (MOS) called for medical
duties yet he was “buffeted” from clerk to messenger.  He contends that he
did not perform any medical duties per his MOS.

3.  The applicant provides no evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 17 September 1970.  The application submitted in this case is
dated 13 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 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.  The applicant enlisted on 8 August 1969 for a period of 3 years.  He
successfully completed basic combat training and advanced individual
training in MOS 91A (medical corpsman).

4.  On 20 November 1969, nonjudicial punishment was imposed against the
applicant for disobeying a lawful order.  His punishment consisted of a
forfeiture of pay, restriction, and extra duty.

5.  On 9 December 1969, nonjudicial punishment was imposed against the
applicant for breaking restriction and being absent without leave (AWOL)
for approximately two hours.  His punishment consisted of a forfeiture of
pay, restriction, and extra duty.

6.  On 26 January 1970, nonjudicial punishment was imposed against the
applicant for using provoking words.  His punishment consisted of a
forfeiture of pay, restriction, and extra duty.

7.  On 8 April 1970, nonjudicial punishment was imposed against the
applicant for failure to repair.  His punishment consisted of a forfeiture
of pay.

8.  On 20 April 1970, nonjudicial punishment was imposed against the
applicant for failure to repair.  His punishment consisted of a reduction
to E-1, restriction, and extra duty.

9.  On 8 June 1970, nonjudicial punishment was imposed against the
applicant for being AWOL for one day.  His punishment consisted of
restriction.

10.  On 26 June 1970, the applicant was notified of his pending separation
under the provisions of Army Regulation 635-212 for unfitness.  After
consulting with counsel, the applicant waived consideration of his case by
a board of officers and representation by counsel.  He also elected not to
submit a statement on his own behalf.

11.  On 12 August 1970, contrary to his pleas, the applicant was convicted
by a summary court-martial of being AWOL from 1 July 1970 to 14 July 1970
and breaking restriction.  He was sentenced to forfeit $88 per month for 1
month.  On 13 August 1970, the convening authority approved the sentence.

12.  On 21 August 1970, the applicant’s unit commander recommended the
applicant be discharged from the service under the provisions of Army
Regulation 635-212 for unfitness.  He based his recommendation for
separation on the applicant’s unwillingness to adapt to the military and
stated his records show an established pattern of shirking.  His
recommendation also stated, in pertinent part, “Private [the applicant’s
last name] MOS is 91A10.  This is a general Medical Corpsman MOS.  Private
[the applicant’s last name] has been assigned to X-Ray, Linen Supply, Ward
III and to Medical Company since his assignment here in March 1970.  Due to
Private [the applicant’s last name] lack of responsibility and apathy
toward his job, it has been necessary to change his duty assignment four
times.”

13.  The separation authority approved the recommendation for separation
and directed that the applicant be furnished an undesirable discharge.

14.  The applicant was discharged on 17 September 1970 with an undesirable
discharge under the provisions of Army Regulation 635-212 for unfitness due
to an established pattern for shirking.  He had served 1 year, 1 month and
10 days of total active service with 14 days lost due to AWOL.

15.  There is no indication in the available records that the applicant
applied to the Army Discharge Review Board for a discharge upgrade within
its 15-year statute of limitations.

16.  Army Regulation 635-212, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  Paragraph 6a(4) of the
regulation provided that members involved in an established pattern of
shirking were subject to separation for unfitness.  An undesirable
discharge was normally considered appropriate.

17.  Army Regulation 635-200, 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.

18.  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 evidence of record does not support the applicant’s contention that
he did not perform any medical duties per his MOS.  The applicant’s unit
commander’s recommendation for separation stated that the applicant was
assigned to medical duties and that due to his lack of responsibility and
apathy toward his job, his duty assignment was changed four times.


2.  The applicant’s brief record of service included six nonjudicial
punishments, one summary court-martial conviction, and 14 days of lost
time.  As a result, his record of service was not satisfactory and did not
meet the standards of acceptable conduct and performance of duty for Army
personnel.  Therefore, the applicant's record of service is insufficiently
meritorious to warrant a general discharge or an honorable discharge.

3.  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.
4.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

5.  Records show the applicant should have discovered the alleged injustice
now under consideration on 17 September 1970; therefore, the time for the
applicant to file a request for correction of any injustice expired on 16
September 1973.  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

JM_____  ML______  RS_____  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.




            ___John Meixell________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050006103                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051201                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19700917                                |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |Unfitness due to an established pattern |
|                        |for shirking                            |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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