RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 July 2006
      DOCKET NUMBER:  AR20060000528


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Ms. Ernestine R. Fields           |     |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, an upgrade of his undesirable
discharge (UD).

2.  The applicant states, in effect, he is asking for a change in his
status.  He states that he knows he did wrong and has had this over his
head for 33 years.  He claims there is an error in the number of days and
would appeal to the Board for an amendment of these days.  He states that
he has been trying to better himself and has been helping veterans in his
town.

3.  The applicant provides no additional documentary evidence in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 10 April 1972.  The application submitted in this case is
dated
20 December 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 2 January 1970.  He was trained in, awarded, and
served in military occupational specialty 76A (Supply Clerk), and the
highest rank he attained while serving on active duty was private first
class (PFC).  It also shows that during his active duty tenure, he earned
the National Defense Service Medal, Parachutist Badge, and the Sharpshooter
Marksmanship Qualification Badge with Rifle Bar.  His record documents no
acts of valor, significant achievement, or service warranting special
recognition.

4.  The record does show that while he was on active duty, he was found
guilty of being absent without leave (AWOL) from 17 through 20 November
1970 by a summary court-martial (SCM) on 25 November 1970, and he was found
guilty of being AWOL on three separate occasions between 16 February 1971
and
27 April 1971 by a special court-martial (SPCM) on 21 May 1971.
5.  The applicant's record also shows he accepted non-judicial punishment
(NJP) under the provisions of Article 15 of the Uniform Code of Military
Justice (UCMJ) on at least four separate occasions for misconduct, and that
on 29 November 1971, his unit commander notified him of the intent to
recommend he be separated from the service under the provisions of Army
Regulation 635-212, for unfitness.

6.  On 6 March 1972, the applicant consulted with legal counsel.  He was
advised of the basis for the contemplated separation, its effects, and of
the rights available to him.  Subsequent to receiving this counsel, the
applicant completed an election of rights, in which he waived his right to
consideration of his case by a board of officer, personal appearance before
a board of officers, and representation by counsel.  He also elected not to
submit a statement in his own behalf.

7.  On 4 April 1972, the separation authority approved the applicant's
discharge for unfitness, and directed he receive an UD and be reduced to
the lowest enlisted grade.  On 10 April 1972, the applicant was discharged
accordingly.  The separation document (DD Form 214) he was issued shows he
was separated under the provisions of Army Regulation 635-212 for unfitness
(frequent involvement in incidents of a discreditable nature with civil or
military authorities), and that he completed a total of 1 year, 9 months,
and 1 day of creditable active military service, and accrued 188 days of
time lost.  He authenticated this document with his signature in Item 32
(Signature of Person Being Transferred or Discharged).

8.  On 22 September 1977, the Army Discharge Review Board, after carefully
reviewing the applicant's case and his entire military record, found that
his discharge was proper and equitable, and it voted to deny his request
that his discharge be upgraded.

9.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the
3 year limit on filing to the Army Board for Correction of Military Records
(ABCMR) should commence on the date of final action by the ADRB.  In
complying with this decision, the ABCMR has adopted the broader policy of
calculating the 3-year time limit from the date of exhaustion in any case
where a lower level administrative remedy is utilized.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his discharge was unjust and should be
upgraded was carefully considered.  However, there is insufficient evidence
to support this claim.  Further, there is no indication that the number of
days of time lost is in error, and absent any evidence to support a change,
there is a presumption of regularity assigned to the number of days entered
on the DD Form 214, which the applicant authenticated with his signature on
the date of his separation.  His signature, in effect, was his verification
that the information contained on the separation document, to include the
number of days of time lost, was correct at the time the document was
prepared and issued.

2.  The evidence of record confirms the applicant was notified of the
contemplated separation action by his unit commander and that he consulted
legal counsel.  It further shows that after being advised of the basis for
the contemplated separation action and its possible effects, he voluntarily
elected to waive his right to have his case considered by a board of
officers and he elected not to submit a rebuttal statement in his own
behalf.

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

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 applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 22 September 1977.
 As a result, the time for him to file a request for correction of any
error or injustice to this Board expired on 21 September 1980.  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

___LE  __  __PHM__  __ERF __  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.




                                  _____Lester Echols________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060000528                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/07/18                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1972/04/10                              |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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