RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 July 2006
      DOCKET NUMBER:  AR20050014771


      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             |
|     |Mr. Dean L. Turnbull              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Allen L. Raub                 |     |Chairperson          |
|     |Mr. LaVerne M. Douglas            |     |Member               |
|     |Ms. Peguine M. Taylor             |     |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.

2.  The applicant states, in effect, that he was granted a full pardon and
a clemency discharge under the Ford memorandum of 19 January 1977.

3.  The applicant provides:

      a.  a copy of his DD 214 (Armed Forces of the United States Report of
Transfer or Discharge);

      b.  a copy of his DD Form 215 (Correction to DD Form 214, Report of
Separation From Active Duty);

      c.  a copy of a letter from the U.S. Department of Justice; and

      d.  a copy of the Presidential Clemency Board case summary.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 28 July 1967, the date of his discharge.  The application
submitted in this case is dated 4 October 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 military records show that he enlisted on 25 January
1962 for a period of 3 years. The applicant immediately reenlisted on 31
July 1964 for another 3 years.

4.  The records show that the applicant successfully completed basic combat
training and advanced individual training and was awarded the military
occupational specialty 55B20 (Ammunition Storage Specialist).

5.  The applicant accepted nonjudicial punishment (NJP) under Article  
15, Uniform Code of Military Justice (UCMJ), on 6 April 1965, and on 2 June
 
1965.  His offenses included absence from his unit and leaving his
appointed place of duty without authority.  His punishments consisted of
restriction for
12 days and forfeiture of $37.00, respectively.

6.  On 7 September 1966, the applicant accepted NJP under the provisions of
Article 15, UCMJ, for being absent without leave (AWOL) from 4 September to
5 September 1966.  His punishment consisted of a reduction to the grade of
Private, E-3; restriction to the company area and extra duty for 7 days;
and forfeiture of $45.

7.  Also, on 25 October 1966, the applicant accepted NJP under the
provisions of Article 15, UCMJ, for being AWOL from 9 October to 10 October
1966 and for misconduct (wrongfully appropriated a 5-ton tractor of a value
of about $11,281). His punishment consisted of a reduction to the grade of
Private E-1, restriction to company area or place of duty for 60 days, and
forfeiture of $68 per month for two months.

8.  On 15 March 1967, the applicant was convicted by a Special Court-
Martial for being AWOL from 30 November 1966 to 27 January 1967.  His
sentence was approved for confinement with hard labor for three months
(suspended for three months).

9.  On 31 May 1967, the applicant accepted NJP under the provisions of
Article 15, UCMJ, for operating his own vehicle at speeds up to 70 miles
per hour in a 25 miles per hour speed zone.  His punishment consisted of
forfeiture of $30 per month for one month.

10.  On 3 June 1967, the applicant was convicted by a Special Court-Martial
for being AWOL from 18 April 1967 to 12 May 1967.  His sentence was
approved for confinement with hard labor for six months and forfeiture of
$86 per month for six months.

11.  On 14 June 1967, the applicant received a psychiatric evaluation from
the Chief of Mental Hygiene, Mental Hygiene Consultation Service, Fort
Sill, Oklahoma.

12.  The examiner diagnosed the applicant as being of average intelligence
and said he was unconcerned regarding the possibility of an administrative
separation.  The examiner stated that the applicant was unable to give any
motivation for his AWOL offenses except his general dissatisfaction with
the
Army and his desire to get away from active duty.  In spite of the fact
that the applicant's expiration term of service was November 1967, he
stated that he would prefer to get out sooner than later if possible.  The
examiner also stated that the applicant displayed poor judgment but he
showed no sign of psychotic thought disorder.  The examiner determined that
the applicant's main difficulty lies in the area of motivation and
willingness to fulfill his military obligation.  The examiner further
determined that the applicant's history of poor motivation and unstableness
in his unit indicated that he had not been an effective Soldier, and he
would continue not to be effective.

13.  The examiner found that the applicant to be psychiatrically cleared
for separation and recommended the applicant receive an administrative
discharge under the provisions of Army Regulation 635-212 (Personnel
Separations, Discharge, Unfitness and Unsuitability).

14.  On 24 June 1967, the applicant's commander recommended that the
applicant be eliminated from the Armed Forces under the provisions of Army
Regulation 635-212 because of unfitness and that an Undesirable Discharge
Certificate be issued to him.  The commander stated that this action was
being taken because of the applicant's frequent incidents of a
discreditable nature with military authorities, an established pattern of
misconduct, and his total lack of responsibility and motivation.

15.  On 26 June 1967, the applicant signed a statement in which he
acknowledged that action under the provisions of Army Regulation  
635-212 because of unfitness was pending in his case.  The applicant
further acknowledged that he had been advised that he may receive an
undesirable discharge if he was discharged for unfitness.

16.  In his statement, dated 26 June 1967, the applicant waived
consideration of his case by the board of officers, waived personal
appearance before the board of officers, waived his right to submit
statements in his own behalf, and waived representation by legal counsel.
He acknowledged that he may expect to encounter substantial prejudice in
civilian life in the event a general discharge under honorable conditions
is issued.  He also, acknowledged that as a result of issuance of an
undesirable discharge under conditions other than honorable, he may be
ineligible for many or all benefits as a veteran under both Federal and
State Laws.

17.  On 28 July 1967, the applicant was discharged from active duty for
unfitness due to frequent incidents of a discreditable nature with military
authorities

and was issued an Undesirable Discharge Certificate.  He had completed  
2 years, 5 months, and 3 days of active service during this enlistment
which was characterized as under other than honorable conditions.  He had
206 days time lost.

18.  On 26 February 1975, the applicant applied to the Presidential
Clemency Board for review of his undesirable discharge.  On 8 December
1975, the applicant was granted a full pardon under Presidential
Proclamation 4313.

19.  Army Regulation 635-212, in effect at the time, set forth the basic
authority for the elimination of enlisted personnel.  Paragraph 6 of the
regulation provided, in pertinent part, that an individual was subject to
separation for unfitness because of frequent incidents of a discreditable
nature with civil or military authorities; sexual perversion including but
not limited to lewd and lascivious acts, indecent exposure, indecent acts
with or assault on a child; drug addiction or the unauthorized use or
possession of habit-forming drugs or marijuana; an established pattern of
shirking; and an established pattern of dishonorable failure to pay just
debts or to contribute adequate support to dependents (including failure to
comply with orders, decrees or judgments).  When separation for unfitness
was warranted an undesirable discharge was normally considered appropriate.

20.  Presidential Proclamation 4313, issued on 16 September 1974, provided
for the issuance of a clemency discharge to certain former Soldiers who
voluntarily entered into and completed an alternate restitution program
specifically designed for former Soldiers who received a less than
honorable discharge for AWOL related incidents between August 1964 and
March 1973.  Upon successful completion of the alternate service, former
members would be granted a clemency discharge by the President of the
United States, thus restoring his or her affected civil rights.  The
clemency discharge did not affect the underlying discharge and did not
entitle the individual to any benefits administered by the Veterans
Administration (now known as the Department of Veterans Affairs).  Soldiers
who were AWOL entered the program by returning to military control and
accepting a discharge in lieu of trial by court-martial.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations and there is no indication of
procedural errors or injustice that would tend to jeopardize his rights.

2.  The evidence of record clearly shows that the applicant had an
extensive disciplinary record and that he exhibited a total disregard for
military authorities and government equipment.  The evidence provides
sufficient basis for an undesirable discharge for unfitness.
Notwithstanding the determination by the Presidential Clemency Board, the
applicant's military records show that his service was not satisfactory
and, therefore, he is not entitled to an honorable or general discharge.

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

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 July 1967; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on  
27 July 1970.  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

____lmd_  ___alr___  ___omt__  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.




                                  __________Allen L. Raub_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050014771                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060725                                |
|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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