RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 January 2006
      DOCKET NUMBER:  AR20050006211


      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. David S. Griffin              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Rodney E. Barber              |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |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,
characterized as under other than honorable conditions, be upgraded to an
honorable discharge.

2.  The applicant states, in effect, that after 33 years he feels that his
discharge should be upgraded so he can receive veteran's benefits.  He
states he currently has a claim for homeless pension pending and has
medical issues.  He further states that he asked for discharge due to a
conflict with a first sergeant and he was told the discharge would be
upgraded automatically after two years.

3.  The applicant provides, through his Congressional representative, a
copy of:

      a.  his DD Form 214 (Armed Forces of the United States Report of
Transfer or Discharge) with an effective date of 20 June 1969; and

      b.  his DD Form 214 with an effective date of 21 April 1972.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an injustice which occurred
on 21 April 1972, the date of his discharge.  The application submitted in
this case is dated 3 March 2005 and was received on 18 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 military records show that he initially enlisted in the
U.S. Army on 10 April 1968, for a period of 3 years.  He successfully
completed basic combat and advanced individual training and was awarded the
military occupational specialty 12A10 (pioneer).  He was discharged on 20
June 1969 to immediately reenlist.  He had served 1 year, 2 months, and 11
days of active service that was characterized as honorable.

4.  On 21 June 1969, the applicant reenlisted for a period of 3 years.

5.  On 8 October 1969, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ), for being absent
without leave (AWOL) during the period from 24 August 1969 to 2 October
1969.

6.  On 31 October 1969, the applicant was assigned to A Company, 84th
Engineer Group, in the Republic of Vietnam.

7.  On 4 December 1969, the applicant accepted NJP under Article 15, UCMJ,
for sleeping on post while posted as a sentinel in an area designated as
authorizing entitlement to special pay for duty subject to hostile fire.

8.  On 3 June 1970, the applicant was assigned to A Company, 589th Engineer
Group, in the Republic of Vietnam.

9.  The applicant accepted NJP under Article 15, UCMJ, on 9 and 31 July,
22 August, 2 September, and 9 October 1970.  His offenses included being in
an off limits area, five specifications of being absent from appointed
place of duty, and failure to obey a lawful order from a commissioned
officer.

10.  On 7 December 1970, the applicant was assigned to A Company, 43rd
Engineer Battalion at Fort Benning, Georgia.

11.  The applicant accepted NJP under Article 15, UCMJ, on 4 June and 29
July 1971.  His offenses included violation of a general regulation
(speeding) and being AWOL from 29 July 1971 to 30 July 1971.

12.  The applicant's separation processing package was not available for
the Board's review.

13.  On 27 March 1972, the applicant was evaluated by a major, medical
corps, at the Department of Clinics, Physical Examination Section, Martin
Army Hospital, Fort Benning, Georgia.  The examiner found that the
applicant met the physical retention standards prescribed in Army
Regulation 40-501 (Standards of Medical Fitness). The examiner further
determined that the applicant was mentally responsible, able to distinguish
right from wrong, able to adhere to the right, and had the mental capacity
to understand and participate in proceedings.

14.  On 21 April 1972, the applicant was discharged under the provisions
of Chapter 10 of Army Regulation 635-200, for the good of the service and
was issued an Undesirable Discharge Certificate.  He had completed 2 years,

7 months, and 17 days of active service and had 75 days time lost.

15.  There is no indication that the applicant applied to the Army
Discharge Review Board (ADRB) for an upgrade of his discharge within the
ADRB's 15-year statute of limitations.

16.  Army Regulation 15-185 (Army Board for Correction of Military Records)
prescribes the policies and procedures for correction of military records
by the Secretary of the Army, acting through the ABCMR.  The regulation
provides that the ABCMR begins its consideration of each case with the
presumption of administrative regularity. The applicant has the burden of
proving an error or injustice by a preponderance of the evidence.

17.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations), in effect at the time set forth the basic authority for the
administrative separation of enlisted personnel.  Chapter 10 of that
regulation provided, in pertinent part, that a member who had committed an
offense or offenses for which the authorized punishment included a punitive
discharge may at any time after the charges have been preferred, submit a
request for discharge for the good of the service in lieu of trial by court-
martial.  An undesirable discharge certificate will normally be furnished
an individual who is discharged for the good of the service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge, characterized as
under other than honorable conditions, should be upgraded to an honorable
discharge.

2.  The applicant contends that he was told that his discharge would be
automatically upgraded after two years and that he now needs his veteran's
benefits.

3.  The U.S. Army does not have, nor has it ever had, a policy to
automatically upgrade discharges.  Each case is decided on its own merits
when an applicant submits an application to either the Army Discharge
Review Board or the ABCMR requesting change in discharge.  Changes may be
warranted if the ABCMR determines that the characterization of service or
the reason for discharge or both were improper or inequitable.  The Defense
Discharge Review Standards specifically state that no factors should be
established that require automatic change or denial of a change in
discharge.

4.  The ABCMR does not correct records solely for the purpose of
establishing eligibility for benefits.  In addition, granting veteran's
benefits is not within the purview of the ABCMR and any questions regarding
eligibility for treatment and other benefits should be addressed to the
Department of Veterans Affairs (DVA).
5.  Although the applicant's separation package was not available, in order
to be discharged under Chapter 10 of Army Regulation 635-200, the applicant
had to have voluntarily requested discharge, admitted his guilt, and
acknowledged that he could receive an undesirable discharge.

6.  Rather than facing the consequences of a trial by court-martial, the
applicant submitted a request for discharge for the good of the service, in
lieu of trial by court-martial.  Although he may now believe that he made
the wrong choice, he should not be allowed to change his mind at this late
date.

7.  Although the applicant's separation package was not available, it is
presumed that the Army's administrative processing of the applicant for
discharge is correct. The applicant has the burden of proving an error or
injustice by a preponderance of the evidence.

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

9.  The ABCMR begins its consideration of each case with the presumption of
administrative regularity.  In the absence of evidence to the contrary, it
is determined that all requirements of law and regulations were met and the
rights of the applicant were fully protected throughout the separation
process.  Further, it is determined that the type of discharge and the
reason for separation were appropriate considering all the facts of the
case.

10.  The applicant’s record of service shows 75 days of time lost.  A
review of the applicant's record of service, which included nine instances
of NJP (six of which occurred in an area designated as authorizing
entitlement to special pay for duty subject to hostile fire), shows the
applicant did not meet the standards of acceptable conduct and performance
of duty for Army personnel.  The applicant's entire record of service was
considered.  There is no record or documentary evidence of acts of valor,
achievement, or service that would warrant special recognition.  Therefore,
the applicant is not entitled to an honorable discharge and there is no
basis to upgrade his discharge to under honorable conditions.

11.  Records show the applicant should have discovered the alleged
injustice now under consideration on 21 April 1972, the date of his
discharge; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 20 April 1975.  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

___lds___  ___rmn__  ___reb___  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.




                                  _________Linda D. Simmons_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050006211                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/01/12                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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