RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:
      DOCKET NUMBER:  AR20050007335


      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             |
|     |Mrs. Victoria A. Donaldson        |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James C. Hise                 |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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 his undesirable discharge be upgraded to an
honorable discharge.

2.  The applicant states that, although his discharge was correct at the
time he was separated, his character and conduct since his discharge
warrants an upgrade.

3.  The applicant provides five letters in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 28 May 1970, the date of his discharge from active duty.
The application submitted in this case is dated 9 May 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 enlisted in the Regular Army and
entered active duty on 17 July 1968.  He completed basic training.  He did
not successfully complete advanced individual training and was not awarded
a military occupational specialty (MOS).  The highest rank he attained
while serving on active duty was private/pay grade E-2.

4.  The applicant’s service personnel records show he was awarded the
National Defense Service Medal.

5.  On 19 August 1968, nonjudicial punishment was imposed against the
applicant for being absent without leave (AWOL) during the period 13 August
1968 through 17 August 1968.  His punishment consisted of forfeiture of
$20.00 and 14 days of extra duty.



6.  On 26 September 1969, a special court-martial convicted the applicant
of being AWOL during the following periods: 13 October 1968 through 18
October 1968; 7 November 1968 through 16 November 1968; 27 November 1968
through 7 May 1969; and 28 May 1969 through 23 July 1969.  The applicant's
punishment consisted of confinement at hard labor for six months and
forfeiture of $50.00 per month for six months.

7.  On 26 March 1970, a special court-martial convicted the applicant of
being AWOL during the period 5 December 1969 through 9 February 1970.  The
applicant's punishment consisted of confinement at hard labor for four
months and forfeiture of $50.00 per month for four months.

8.  On 15 May 1970, the unit commander advised the applicant that he was
recommending the applicant’s discharge under the provisions of Army
Regulation 635-212 (Personnel Separations) by reason of unfitness.

9.  The applicant consulted with legal counsel and after being advised of
the basis for the contemplated separation, its effects and the rights
available to him, he waived his right to consideration of his case by a
board of officers, personal appearance before a board of officers, and his
right to counsel.  The applicant elected not to provide statements on his
behalf.

10.  On 15 May 1970, the separation authority directed the applicant’s
separation under the provisions of Army Regulation 635-212 for unfitness
and that he receive an Undesirable Discharge Certificate.  On 28 May 1970,
the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of
the United States Report of Transfer or Discharge) issued to him at the
time, confirms the applicant completed a total of 3 months and 23 days
creditable active military service and that he accrued a total of 559 days
of time lost due to AWOL and confinement.

11.  The applicant's records contain an undated letter from the applicant
to the President of the United States in which he states he will never
"pull a day of duty", that he wants to be released from the service, and
requests the assistance of the President with this matter.

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



13.  The applicant provided five character reference letters which
essentially state the applicant was a dependable, loyal, law-abiding
citizen who was honest, hard working and active in his church.
Additionally each of the authors stated that they have known the applicant
for numerous years.

14.  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 undesirable discharge was normally
considered appropriate for members separating under these provisions.

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations), 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.

16.  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 because his post service conduct and character warrants an
upgrade.

2.  The applicant's record of service included one nonjudicial punishment
for being AWOL and two special courts-martial for being AWOL.  The
applicant's records further show that he only served 3 months and 23 days
of creditable active service and had 559 days of lost time due to AWOL and
confinement.

3.  Based on this record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  This misconduct also renders his service
unsatisfactory.  Therefore, he is not entitled to either a general
discharge or an honorable discharge.

4.  The applicant provided several letters regarding his excellent post
service achievements and conduct.  However, good post service conduct alone
is not a basis for upgrading a discharge, and, in this case, it is not
sufficient to overcome the offenses he committed while in the Army.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 May 1970; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 27 May 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

__JCH___  _REB___  _JRM___  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.




                                      _James C. Hise___
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR2005007335                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/12/20                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19700528                                |
|DISCHARGE AUTHORITY     |AR 635-212. . . . .                     |
|DISCHARGE REASON        |unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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