RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 August 2006
      DOCKET NUMBER:  AR20060000610


      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. G. E. Vandenberg              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Paul M. Smith                 |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Mr. Ronald D. Gant                |     |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 that his 1970 discharge be upgraded.

2.  The applicant states, in effect, the reason for his misconduct was that
after his mother, who lived alone, was raped and robbed she needed him.  He
hasn’t done anything to break the law, is a good citizen, and attends
church regularly.  In effect, he is requesting clemency based on post
service considerations.

3.  The applicant provides two letters of reference from employers stating
that he is a dependable, hard working employee who was a self-starter with
excellent work habits.

CONSIDERATION OF EVIDENCE:

1.  The records show the applicant entered active duty on 9 July 1968.  He
completed basic combat training but not advanced individual training.

2.  A 25 March 1969 special court-martial found the applicant guilty of
AWOL (absence without leave) for the periods 1 October 1968 through 5
November 1968 and 12 November 1968 through 25 February 1969.  He was
sentenced to forfeit $68.00 pay per month for six months and confinement
for six months.

3.  On 28 March 1969 the convening authority approved the sentence except
that the unexecuted portion of the confinement was suspended for six months
at which time it would be remitted if not sooner vacated.

4.  On 26 September 1969 Special Court-Martial Order Number 1136 vacated
the suspension and directed that the unexecuted portion of the sentence be
executed.

5.  A 12 November 1969 special court-martial found the applicant guilty of
AWOL for the periods 5 April 1969 through 7 April 1969 and 28 April 1969
through 25 September 1969.  He was sentenced to forfeit $30.00 pay per
month for four months and confinement for three months.

6.  The record contains no documentation associated with the applicant’s
discharge processing.

7.  The 23 January 1970 DD Form 214 (Armed Forces of United States Report
of Transfer or Discharge) shows the applicant was discharged for frequent
incidents of a discreditable nature under the provisions of Army Regulation
635-212 with a undesirable discharge (UD).  He had 3 months and 14 days of
creditable service with 457 days of lost time.

8.  On 28 September 1977 the Army Discharge Review Board denied the
applicant's petition to upgrade his discharge.

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 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.  When separation for unfitness
was warranted, an undesirable discharge was normally considered
appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant never completed training and his total period of lost
time (457 days) is more than three times that of his creditable service.

2.  In the absence of evidence to the contrary, it is presumed that the
discharge proceedings were conducted in accordance with law and regulations
applicable at the time.  The character of the discharge is commensurate
with his overall record, which is devoid of any redeeming service.

3.  The letters of reference from his employers are noted but these do not
outweigh his record of misconduct and the absence of significant 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.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__RDG__  _PMS ___  __LMD__  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.




                                  _        Paul M. Smith_________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060000610                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            | 20060829                               |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19700123                                |
|DISCHARGE AUTHORITY     |AR 635-212. . . . .                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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