RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:       11 July 2006
      DOCKET NUMBER:  AR20050015521


      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. Stephanie Thompkins           |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Ms. Carmen Duncan                 |     |Member               |
|     |Ms. Jeanette 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, in effect, upgrade of his undesirable discharge
to general.

2.  The applicant states, in effect, that he was exposed to drugs and Agent
Orange and rendered unstable mentally which contributed to his post-
traumatic stress disorder.  He served to the best of his mental capacity.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 13 December 1970, the date of his discharge from active duty.
The application submitted in this case is dated 11 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 in the Army on
25 August 1969, in pay grade E-1, for 3 years.  He completed basic training
and was assigned military occupational specialty 76P, stock control and
accounting specialist.  He was advanced to pay grade E-4 on 13 May 1970.

4.  On 2 October 1970, the applicant was convicted by a Special Court-
Martial of wrongful use of marijuana on or about 5 July 1970.  His sentence
was forfeiture of $100.00 pay per month for 1 month.  The sentence was
approved on 9 November 1970.

5.  On 10 November 1970, the applicant, through counsel, acknowledged
receipt of a proposed elimination from the service for unfitness.  He
elected not to have his case heard before a board of officers, elected not
to submit a statement in his own behalf, and stated he understood that he
might be issued an undesirable discharge under conditions other than
honorable, and the results of issuance of an undesirable discharge.
6.  On 18 November 1970, a psychiatric evaluation revealed that the
applicant was both mentally responsible and able to distinguish right from
wrong and adhere to the right.  The evaluation recommended administrative
separation of the applicant.

7.  On 25 November 1970, the applicant's commander recommended that he be
separated from the Army under the provisions of Army Regulation 635-212,
for Unfitness with an Undesirable Discharge.  The commander stated that the
discharge was recommended because of the applicant's inability to conform
to military standards, his resentment toward military authority, rules and
regulations, and his total disregard for the military system.  The
commander also stated that the applicant's records show no personal awards,
and he received two company grade and one field grade Article 15s.  In
addition, he has been absent without leave on several occasions.

8.  On 6 December 1970, the appropriate separation authority approved the
discharge under the provisions of Army Regulation 635-212, and directed his
reduction to the lowest enlisted grade and issuance of an Undesirable
Discharge Certificate.

9.  The applicant was discharged on 13 December 1970, in pay grade E-1,
under the provisions of Army Regulation 635-212, by reason of unfitness.
He was credited with 1 year, 3 months, and 18 days net service.  His
character of service was under other than honorable conditions.

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

11.  Army Regulation 635-212 (Enlisted Soldiers), in effect at the time,
set forth the basic authority for the separation of enlisted personnel.
Paragraph 6a(1) of the regulation provided, in pertinent part, that members
involved in frequent incidents of a discreditable nature with civil or
military authorities were subject to separation for unfitness.  Action to
separate an individual was to be taken when, in the judgment of the
commander, rehabilitation was impractical or was unlikely to produce a
satisfactory Soldier.  An undesirable discharge was normally considered
appropriate.

12.  Army Regulation 635-200, paragraph 3-7, also 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.  In view of the circumstances in this case, the applicant is not
entitled to an upgrade of his discharge.  He has not shown error,
injustice, or inequity for the relief he now requests.

2.  The applicant’s contentions have been noted; however, they do not
sufficiently support his request and do not serve as mitigation in his
case.  The applicant's commander felt he should be discharged because of
his inability to conform to military standards, his resentment toward
military authority, rules and regulations, and his total disregard for the
military system.  Therefore, it appears the applicant made no attempt to
adapt to military life.

3.  In the absence of evidence to the contrary, the applicant’s discharge
was conducted in accordance with law and regulations applicable at the
time.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 13 December 1970, the date of his
discharge from active duty; therefore, the time for the applicant to file a
request for correction of any error or injustice expired on 12 December
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.

5.  In view of the foregoing, there is no basis for granting the
applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_JS_____  ___cd___  _JM_____  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 Slone__________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050015521                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060711                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |A70                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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