RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 October 2005
      DOCKET NUMBER:  AR20050006462


      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. Maria C. Sanchez              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Kenneth W. Lapin              |     |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 undesirable discharge be upgraded to
honorable.

2.  The applicant states, in effect, his discharge should be upgraded.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 28 January 1972, the date of his separation from active duty.
The application submitted in this case was received on 29 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 enlisted in the Army on 17 July 1969 for a period of
three years. After completion of basic and advanced individual training, he
was awarded military occupational specialty 11B1P (Light Weapons
Infantryman).  He served in Vietnam for the period 14 April 1970 through 11
May 1971.

4.  On 2 March 1970, nonjudicial punishment was imposed against the
applicant for failure to go at the time prescribed to his appointed place
of duty on 28 February 1970.  The punishment consisted of forfeiture of
$20.00 and reduction in pay grade to private/E-1.

5.  On 12 April 1971, a special court-martial convicted the applicant for
being absent without leave (AWOL) for the period 7 January 1971 through 24
January 1971.  The sentence consisted of forfeiture of $75.00 per month for
two months, and reduction in pay grade to private/E-1.



6.  On 20 September 1971, a summary court-martial convicted the applicant
for AWOL for the period 17 August 1971 through 13 September 1971.  The
sentence consisted of 35 days of hard labor without confinement, forfeiture
of $95.00 per month for one month, 30 days restriction to the battalion
area and reduction in pay grade to private/E-1.

7.  The applicant's service records contain a Request for Final Type
Physical Examination and Mental Status Evaluation, dated 18 January 1972,
which shows the applicant underwent a final type physical examination and
was found to meet the physical retention standards.  The medical corps
officer concluded that the applicant was found mentally responsible, able
to distinguish right from wrong, able to adhere to the right, and has the
mental capacity to understand and participate in Board proceedings.  The
medical corps officer authenticated this form.

8.  The applicant's discharge processing documents were not available in
his military service records.

9.  The applicant's DD Form 214 shows that he was discharged on 28 January
1972, under the provisions of chapter 10 of Army Regulation 635-200, for
the good of the service and issued an Undesirable Discharge Certificate,
with service characterized as under other than honorable conditions.  He
had served 2 years, 3 months, and 8 days of total active service and had 65
days of lost time due to AWOL.

10.  There is no evidence in the available records which shows that the
applicant applied to the Army Discharge Review Board for an upgrade of his
discharge within that board’s 15-year statute of limitation.

11.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel)
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.  An Undesirable Discharge
Certificate is normally considered appropriate.






12.  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.

13.  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 undesirable discharge should be
upgraded to honorable.

2.  In the absence of evidence to the contrary, it is presumed that all
requirements of law and regulation 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 discharge are
appropriate considering all the facts of the case.

3.  The period of service under consideration includes a special court-
martial, a summary court-martial, a nonjudicial punishment, 65 days of lost
time and separation with an Undesirable Discharge Certificate.  Therefore,
this period of service is unsatisfactory and does not merit a general
discharge.

4.  It is evident that his quality of service did not meet the standards of
acceptable conduct and performance of duty for Army personnel.
Furthermore, his service is not satisfactory; therefore, he is not entitled
to an honorable discharge or a general discharge.

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 28 January 1972; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 27 January 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

_JNS__  __KWL___  __LDS___   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 N. Slone___
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050006462                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051026                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1972/01/28                              |
|DISCHARGE AUTHORITY     |AR 635-200, ch 10                       |
|DISCHARGE REASON        |For the good of the service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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