RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         22 November 2005
      DOCKET NUMBER:  AR20050006278


      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. Yvonne Foskey                 |     |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 undesirable discharge (UD)
be upgraded.

2.  The applicant states, in effect, that he received no help for his drug
problem and he was instead quickly separated.  He also requests he be given
a hearing in a military court.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 16 February 1970.  The application submitted in this case
is dated 31 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 enlisted in the Regular Army and
entered active duty on 15 April 1968.  He was trained in, awarded, and
served in military occupational specialty (MOS) 63B (Wheel Vehicle
Mechanic).

4.  On 16 December 1968, he was honorably discharge for the purpose of
immediate reenlistment.  On 17 December 1968, he reenlisted for six years
and for an overseas assignment to United States Army Europe.

5.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he
attained the rank of private first class (PFC) on 21 October 1969, and that
this is the highest rank he attained while serving on active duty.  Item 41
(Awards and Decorations) shows that during his active duty tenure, he
earned the National Defense Service Medal and Marksman Qualification Badge
with Rifle Bar.  His record documents no acts of valor, significant
achievement, or service warranting special recognition.

6.  On 16 April 1969, the applicant accepted nonjudicial punishment (NJP)
under the provisions of Article 15 of the Uniform Code of Military Justice
(UCMJ) for being absent without leave (AWOL) from 15 through 16 April 1969.
 His punishment for this offense included a reduction to private/E-2 (PV2),
a forfeiture of $17.00, and 14 days restriction and extra duty.

7.  On 19 September 1969, a special court-martial (SPCM) found the
applicant guilty of three specifications of violating Article 86 of the
UCMJ by being AWOL on the following three separated occasions:  2 September
1969; 4 through
8 September 1969; and 15 September 1969.  The resultant sentence included
confinement at hard labor for 30 days, reduction to private/E-1 (PV1), and
a forfeiture of $50.00.

8. The applicant’s Military Personnel Record Jacket (MPRJ) contains no
separation packet containing the specific facts and circumstances
surrounding the applicant’s separation processing.  The record does include
a separation document (DD Form 214) that shows on 16 February 1970, he was
separated under the provisions of Army Regulation 635-212, by reason of his
involvement in frequent incidents of a discreditable nature with military
authorities, and that he received an UD.

9.  The applicant’s DD Form 214 also shows that he completed a total of 1
year, 9 months, and 28 days of creditable active military service and that
he accrued a total of 4 days of lost time due to AWOL.

10.  There is no evidence showing that the applicant applied to the Army
Discharge Review Board for an upgrade of his discharge within its 15-year
statute of limitations.

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 unfitness.  An UD was normally considered
appropriate for members separating under these provisions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his UD should be upgraded because he
was drug dependent at the time was carefully considered.  However, there is
insufficient evidence to support this claim.

2.  The applicant’s record is void of a separation packet containing the
specific facts and circumstances surrounding his discharge processing.
However, it does contain a properly constituted DD Form 214 that identifies
the reason and characterization of his discharge.  Therefore, Government
regularity in the discharge process is presumed.

3.  In the absence of information to the contrary, it is concluded that all
requirements of law and regulation were met, and the rights of the
applicant were fully protected throughout the separation process.

4.  The evidence of record contains no indication that the applicant ever
sought, or was refused help for a drug dependence problem.  Further, his
disciplinary history supports the chain of command’s decision to process
him for separation.  Further, his discharge accurately reflects his overall
record of undistinguished service.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 February 1970.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 15 February 1973.  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
timely 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.
72.  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                 |AR20050006278                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-11-22                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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