RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 January 2006
      DOCKET NUMBER:  AR20050008146


      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:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Mr. Chester A. Damian             |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |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 a
general discharge.

2.  The applicant states that his discharge was supposed to be
characterized as under honorable conditions per the military court decision
at the time of his discharge.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge) in support of this
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 14 January 1969, the date of his separation from active
duty.  The application submitted in this case is dated 18 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 was inducted in the Regular Army
on 25 November 1966 and entered active duty on 26 November 1966.  He was
trained in, awarded, and served in military occupational specialty (MOS)
11B10 (Rifleman) and the highest rank he attained while serving on active
duty was private first class/pay grade E-3.

4.  The applicant’s records show he was awarded the National Defense
Service Medal and the Armed Forces Expeditionary Medal.

5.  The 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 the following four separate
occasions for the offenses indicated:  7 December 1966, for offering
violence to a superior non-commissioned officer on 7 December 1966; 11
January 1967, for disobeying a lawful order; 12 June 1967, for failure to
go to his appointed place of duty; and 29 January 1968, for being absent
without leave (AWOL) during the period 13 January 1968 through 25 January
1968.

6.  On 29 July 1967, a special court-martial convicted the applicant of
disobeying a lawful order on 5 July 1967 and for breaking restriction on 4
July 1967.  The resultant sentence included confinement at hard labor for
six months and forfeiture of two-thirds pay per month for six months.

7.  On 1 March 1968, a special court-martial convicted the applicant for
being AWOL from 5 February 1968 through 13 February 1968.  The resultant
sentence included confinement at hard labor for six months and forfeiture
of $68.00 per month for six months.

8.  On 3 September 1968, a special court-martial convicted the applicant
for being AWOL from 5 August 1968 through 15 August 1968.  The resultant
sentence included confinement at hard labor for six months and forfeiture
of $64.00 per month for six months.

9.  On 7 November 1969, 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.

10.  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 any statements on
his behalf.

11.  26 November 1969, 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 14 January
1969, the applicant was discharged accordingly.  The DD Form 214 issued to
him at the time, confirms the applicant completed a total of 9 months and
20 days of creditable active military service and that he accrued a total
of 485 days of time lost due to AWOL and confinement.

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.  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.

14.  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.

15.  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 a general discharge because his discharge was supposed to be
characterized as under honorable conditions per the military court decision
at the time of his discharge.  This contention is without merit because the
applicant was administratively separated under the provisions of Army
Regulation 635-212 not as a result of a court-martial.

2.  The record confirms that all requirements of law and regulation were
met and the applicant’s rights were fully protected throughout the
administrative separation process.  The record further shows the
applicant’s discharge accurately reflects his overall record of
undistinguished service.

3.  The applicant's record of service included four nonjudical punishments
and three special courts-martial for various offenses including being AWOL,
breaking restriction, and failure to obey a lawful order.

4.  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 extensive misconduct also renders his service
unsatisfactory.  Therefore, he is not entitled to either a general or an
honorable discharge.

5.  In order to justify correction of a military record the applicant must
satisfactorily show, or it must otherwise satisfactorily appear, that the
record is in error or unjust.  The applicant has failed to submit
sufficient evidence that would satisfy this requirement.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 January 1969; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 13 January 1972.  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

_CD____  _KSJ____  __SLP___  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.




                                     __Shirley L. Powell___
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050008146                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060118                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1969/01/14                              |
|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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