RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         6 December 2005
      DOCKET NUMBER:  AR20050007501


      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. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Donald W. Steenfott           |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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, who represents the former service member (FSM), requests
that the FSM's undesirable discharge (UD) be upgraded.

2.  The applicant states, in effect, that the FSM would like to have his UD
upgraded so that he may be seen by the doctors, receive medical aid and be
treated for his illnesses.

3.  The applicant provides a Department of Veterans Affairs (VA) Statement
in Support of Claim (VA Form 21-4138) in support of the application.


CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 11 June 1968.  The application submitted in this case is
dated
10 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 FSM’s record shows he was inducted into the Army and entered active
duty on 13 February 1967.  He attended Advanced Individual Training (AIT)
at Fort Rucker, Alabama, and was enrolled in class number 67-231 for
training in Military Occupational Specialty (MOS) 67A (Aircraft
Maintenance).

4.  The FSM’s Enlisted Qualification Record (DA Form 20) shows he attained
the rank of private/E-2 (PV2) on 20 April 1967, and that this is the
highest rank he attained while serving on active duty.  The FSM’s record
documents no acts of valor, significant achievement, or service warranting
special recognition.

5.  The FSM’s record reveals a disciplinary history that includes his
acceptance of nonjudicial punishment (NJP) under the provisions of Article
15 of the Uniform Code of Military Justice (UCMJ) on 8 September 1967, for
being absent without leave (AWOL) from on or about 2 through on or about 5
September 1967.

6.  On 18 August 1967, a special court-martial (SPCM) convicted the FSM
of violating Article 86 of the UCMJ by being AWOL from on or about 1 July
1967 through on or about 1 August 1967.  The resultant sentence included
confinement at hard labor for six months and forfeiture of $30.00 per month
for six months.

7.  On 8 February 1968, a SPCM convicted the FSM of violating Article 86 of
the UCMJ by being AWOL from on or about 1 October 1967 through on or about
10 January 1968.  The resultant sentence included confinement at hard labor
for six months.

8.  The FSM's Military Personnel Record Jacket (MPRJ) does not contain a
separation packet containing the specific facts and circumstances
surrounding his separation processing.  The record does include a
separation document
(DD Form 214) that shows the FSM was separated on 11 June 1968; under the
provisions of Army Regulation 635-212, by reason unfitness (involvement in
frequent incidents of a discreditable nature with military authorities).
It also shows he received an UD, and completed a total of 7 months and 9
days of creditable active military service and accrued 264 days of time
lost due to AWOL and confinement.

9.  The FSM's record gives no indication he applied to the Army Discharge
Review Board (ADRB) for an upgrade of his discharge within the ADRB’s 15-
year statute of limitations.

10.  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 the FSM's UD should be upgraded so that
he may receive medical aide and be treated by a doctor for his illnesses
was carefully considered.  However, these factors, while unfortunate, are
not sufficiently mitigating to warrant an upgrade of his discharge at this
late date.

2.  The FSM'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 FSM were
fully protected throughout the separation process.

4.  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.

5.  Records show the FSM should have discovered the alleged error or
injustice now under consideration on 11 June 1968.  Therefore, the time for
him to file a request for correction of any error or injustice expired on
10 June 1971. 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

__BPI ___  ___DWS_  ___EEM   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.




                                  _____Bernard P. Ingold ____
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050007501                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-12-06                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1968/06/13                              |
|DISCHARGE AUTHORITY     |AR635-212 . . . . .                     |
|DISCHARGE REASON        |SPN 28b                                 |
|BOARD DECISION          |DENY,                                   |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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