RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 September 2006
      DOCKET NUMBER:  AR20060000664


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Eric N. Anderson              |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. Richard O. Murphy             |     |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, that his undesirable discharge (UD),
characterized as under other than honorable conditions (UOTHC), be
upgraded.

2.  The applicant states, in effect, that his UD, characterized as UOTHC,
should be upgraded.

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 his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 24 March 1971, the date of his discharge.  The application
submitted in this case is dated 4 January 2006.

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 he enlisted in the Regular Army
and entered active duty on 9 October 1967, for training as a clerk typist
(71B), with an established expiration term of service (ETS) of 8 October
1970.  He served in Korea from 17 March 1968 to 15 March 1969.  He was
advanced to pay grade  E-3 on 2 May 1968. 

4.  Between 2 August 1968 and 18 December 1969, he received nonjudicial
punishment on six occasions under Article 15, UCMJ, for being present in an
off-limits area, for being drunk and disorderly, for failing to go to his
appointed place of duty on three occasions, for being absent without leave
(AWOL) from 31 July to 1 August 1969, for breaking restriction, for failing
to obey a lawful order, and for being derelict in the performance of his
duty.  His punishments consisted of a reduction to pay grade E-1,
forfeitures of pay, and restriction and extra duties.



5.  He was convicted by a special court-martial on 17 July 1970, of
willfully disobeying a lawful order from his superior officer, of failing
to go to his appointed place of duty, of being AWOL from 3 to 17 June 1970,
of wrongfully possessing marijuana, and of wrongfully possessing marijuana
in the hashish form.  His sentence consisted of confinement at hard labor
for 101 days and reduction to the pay grade of E-1.

6.  On 22 August 1970, the applicant was arrested and charged by civil
authorities of selling narcotics, in Columbus, Georgia.  He was convicted
by a civilian court and sentenced to 12 months in civilian confinement.  He
was returned to military control on 22 February 1971.

7.  On 22 February 1971, the applicant's commander notified the applicant
that he was being processed for separation, under the provisions of Army
Regulation 635-206, for his civil court conviction.  He waived his rights
and elected not to submit a statement in his behalf.

8.  On that same day, the applicant’s commander submitted a recommendation
to separate the applicant from the service under the provisions of Army
Regulation 635-206, due to his civil court conviction.

9.  On 11 March 1971, the approval authority directed that the applicant be
separated and issued an UD.  The applicant was discharged on 24 March 1971,
under the provisions of Army Regulation 635-206, due to his civil court
conviction.  He had a total of 2 years, 8 months, and 29 days of creditable
service and had 124 days of lost time due to AWOL and confinement prior to
his scheduled ETS and 136 days lost time due to AWOL and confinement
subsequent to his normal ETS.

10.  On 15 November 1973, the Army Discharge Review Board denied the
applicant's petition to upgrade his discharge.

11.  Army Regulation 635-206, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  Paragraph 33 of the
regulation provided, in pertinent part, that members convicted by civil
authorities would be considered for separation.  An undesirable discharge
was normally considered appropriate. 





12.  Army Regulation 635-200, currently in effect, sets forth the basic
authority for the separation of enlisted personnel.  Chapter 14 establishes
policy and prescribes procedures for separating members for misconduct. 
Specific categories include minor disciplinary infractions, a pattern of
misconduct, commission of a serious offense, conviction by civil
authorities, desertion or absence without leave.  Action can be taken to
separate a member for misconduct when it is clearly established that
rehabilitation is impracticable or is unlikely to succeed.  A discharge
under other than honorable conditions is normally considered appropriate.

13.  Army Regulation 635-200, paragraph 3-7b, 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.

14.  Army Regulation 635-200, paragraph 3-7b, 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, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in
compliance with applicable regulations with no procedural errors, which
would tend to jeopardize his rights.

2.  The type of separation directed and the reasons for that separation
were appropriate considering all of the facts of the case.

3.  It is apparent that his discharge was based on his several incidents of
misconduct, which included nonjudicial punishment on six occasions, under
Article 15, UCMJ; one special court-martial; and his civil court
conviction.  Therefore, there is insufficient basis to support his request
for an upgrade of his UD.

4.  The applicant has provided no evidence to show that his discharge was
unjust at the time of his offense.  He has not provided evidence sufficient
to mitigate the character of his discharge.

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

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 15 November 1973.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 14 November 1974.  However,
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

__ROM__  _RML___  ___ena__  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.




                                  ____Eric N. Anderson _______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000664                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060914                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19710324                                |
|DISCHARGE AUTHORITY     |AR 635-206                              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]