RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22. December 2005
      DOCKET NUMBER:  AR20050006366


      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. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Ted S. Kanamine               |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Ms. Jeanette B. McPherson         |     |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 conditions other than honorable, be upgraded to a
general under honorable discharge.

2.  The applicant provides no specific argument in support of his request.


3.  The applicant provides a copy of his separation document (DD Form 214)
in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 8 March 1971, the date he was separated from
active duty.  The application submitted in this case is dated 18 February
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 that he reenlisted in the Regular Army on
26 October 1968, for 6 years after serving 5 years, 11 months and 15 days
of creditable active service.  His military occupational specialty was
(MOS) 12B10 (Combat Engineer), the highest rank he attained while serving
on active duty was sergeant (E-5).  The record documents no acts of valor,
significant achievement or service warranting special recognition.

4.  The applicant’s record indicates that he accepted nonjudicial
punishment (NJP), for being absent without leave from 16 to 18 June 1969.
However, the particulars are missing from his record.

5.  On 24 October 1969, the applicant accepted NJP, for leaving his
appointed place of duty without proper authority, for disobeying a lawful
order and for breaking restriction.  His imposed punishment was a reduction
to pay grade E-4, a forfeiture of $50.00 pay per month for 2 months, 45
days restrictions and extra duty.

6.  On 28 January 1970, the commander recommended that the applicant be
discharge under the provisions of Army Regulation 635-212, for unfitness.
The commander submitted the following reason for his recommendation:
Frequent incidents of discreditable nature with military authorities, an
established pattern for shirking his duties, his record of NJP’s, his
repeated counseling session and his arrest for beating his wife.

7.  On the same day, the applicant was advised by counsel of the basis for
the contemplated action and the rights available to him.  After being
advised of his rights, the applicant requested a personal appearance and
consideration of his case before board officers.

8.  On 6 February 1970, a psychiatric evaluation found the applicant
mentally competent to participate in board proceedings.

9.  On 18 March 1970, the applicant was convicted by a Special Court-
Martial of the wrongful appropriation of sixty charges, demolition block,
one quarter pound of composition C-4, twenty-four cap blasting special
electric M-6, six cap blasting special electric M-6, one Detonator cord,
one M57 firing device, and approximately one hundred feet claymore mine
detonating wire, of a value of $120.00, the property of the United States
Government.  He was sentenced to confinement at hard labor for 6 months
(suspended for 6 months), a forfeiture of $100.00 pay per month for 6
months and a reduction to pay grade E-1.

10.  On 4 June 1970, the applicant received notification to appear before a
board of officers convened under the provisions of Army Regulation 635-212,
for determining whether he should be discharged before his expiration of
his term of service.  After conducting, the hearing and considering the
evidence presented.  The board found that the applicant was not a discredit
to the Army and that he should be retained in the U.S. Army and returned to
duty.

11.  The applicant’s record indicates that the applicant was reported for
being AWOL from 28 March to 6 December 1970 and from 8 December 1970 to
3 February 1971.

12.  The facts and circumstances pertaining to the applicant’s discharge
proceedings are not in his Military Personnel Records Jacket (MPRJ).
However, the MPRJ does contain a separation document (DD Form 214) that
contains the authority and reason for his discharge.  The applicant
authenticated this document with his signature indicating he was discharged
under the provisions of Army Regulation 635-200, Chapter 10, with an
undesirable discharge, characterized as Under Conditions Other Than
Honorable, and that the reason for discharge was for the good of the
service.  On 8 March 1971, the applicant was discharged after completing a
total of 8 years, 7 months and 7 days of active military service and 139
days of time lost.

13.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of that regulation provides,
in pertinent part that a member who has committed an offense or offenses
for which the authorized punishment includes 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.  A
discharge characterized under other than honorable conditions is normally
considered appropriate.

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



DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record is void of the specific facts and circumstances
surrounding his separation processing.  However, it does contain a properly
constituted DD Form 214 that identifies the reason and characterization of
the applicant’s discharge.  The applicant authenticated this document with
his signature on the date of his separation.  Therefore, Government
regularity in the discharge process is presumed.

2.  In the absence of any evidence of record or independent evidence 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. Further, the applicant’s discharge accurately reflects
his overall record of service.

3.  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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 March 1971, therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
7 March 1974.  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

__TSK __  __RLD __  __JBM __  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.




                                  _____Ted S. Kanamine ____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050006366                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051222                                |
|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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