RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         15 August 2006
      DOCKET NUMBER:  AR20060000738


      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:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. John G. Heck                  |     |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) and of his reentry (RE) code, and a change to his Separation
Program Number (SPN) code.

2.  The applicant states, in effect, that his discharge was unjust and that
an upgrade is warranted based on his overall record of service, and his
excellent post service conduct.

3.  The applicant provides a self-authored statement in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 30 August 1972, the date of his separation from active
duty.  The application submitted in this case was received on 17 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 record shows that he enlisted in the Regular Army and
entered active duty on 13 October 1969.  He was trained in, awarded, and
served in military occupational specialty (MOS) 94B (Cook), and the highest
rank he attained while serving on active duty was specialist four (SP4).

4.  The applicant's Enlisted Qualification Record shows he served in the
Republic of Vietnam (RVN) from 10 May 1971 through 11 March 1972.  It also
shows that during his tenure on active duty, he earned the National Defense
Service Medal, RVN Campaign Medal with 60 Device, and Vietnam Service.

5.  The applicant's record documents no acts of valor, significant
achievement, or service warranting special recognition.  It does confirm
that he accrued 143 days of time lost due to being absent without leave
(AWOL).

6.  The applicant's disciplinary history includes his acceptance of non-
judicial punishment (NJP) under the provisions of Article 15 of the Uniform
Code of Military Justice (UCMJ) on the following nine separation occasions
for the offense(s) indicated:  9 December 1970, AWOL; 4 March 1971, AWOL;
19 July 1971, AWOL; 29 August 1971, AWOL; 20 September 1971, AWOL;
27 September 1971, AWOL; 11 January 1972, uniform violation; 12 January
1972, AWOL; and 28 January 1972, AWOL.

7.  The applicant's record also shows that on 26 November 1971, a Special
Court-Martial (SPCM) found him guilty of disobeying a lawful order and
breaking restriction.  The resultant sentence was confinement at hard labor
for 90 days, reduction to private/E-1 (PV1), and a forfeiture of $50.00 per
month for three months.

8.  On 9 March 1972, the battalion commander advised the applicant that he
was recommending him for discharge under the provisions of Army Regulation
635-212, by reason of unfitness, and that he was recommending he receive an
UD.  The commander cited the applicant's incidents of a discreditable
nature, including conduct rendering him subject to punitive action, and his
established pattern of shirking, as the basis for taking the action.

9.  The applicant consulted with legal counsel and after being advised of
the basis for the contemplated separation, its effects and the rights
available to him, he waived his right to consideration of his case by a
board of officers, personal appearance before a board of officers, and his
right to counsel.  He further elected not to make a statement in his own
behalf.

10.  On 11 March 1972, the separation authority directed the applicant’s
separation under the provisions of Army Regulation 635-212, by reason of
unfitness.  On 30 August 1972, the applicant was discharged accordingly.
The separation document (DD Form 214) issued to him at the time confirms he
was completed a total of 2 years, 5 months and 25 days of creditable active
military service, and that he accrued a total of 143 days of time lost due
to AWOL.  It also shows that based on the authority for his separation, he
was assigned a corresponding SPN code of 28B (frequent involvement in
incidents of a discreditable nature with civil or military authorities) and
RE-3 code.

11.  On 26 July 1977, the applicant’s discharge was upgraded to a general,
under honorable conditions discharge (GD) under the provisions of the
Department of Defense (DOD) Special Discharge Review Program (SDRP).
However, a review of the upgrade action conducted by the Army Discharge
Review Board (ADRB) conducted under the provisions of Public Law 95-126 on
21 April 1978, resulted in a determination that the initial discharge was
proper and equitable and a majority vote of the ADRB not to affirm the SDRP
upgrade action.

12.  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 UD was normally considered
appropriate for members separating under these provisions.

13.  Pertinent Army regulations provide that prior to discharge or release
from active duty, individuals will be assigned RE codes, based on their
service records or the reason for discharge.  Army Regulation 601-210
covers eligibility criteria, policies, and procedures for enlistment and
processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3
of that regulation prescribes basic eligibility for prior service
applicants for enlistment.  That chapter includes a list of armed forces RE
codes, including RA RE codes.  RE-3 applies to persons who are not
qualified for reenlistment; however, the disqualification is waviable.

14.  Army Regulation 635-5 (Separation Documents), in effect at the time of
the applicant's discharge, provided the specific authorities (regulatory or
directive), reasons for separating Soldiers from active duty, and the SPN
codes to be entered on the DD Form 214.  At the time of the applicant's
separation, it stated, in pertinent part, that the SPN code of 28B was the
appropriate code to assign to Soldiers separated under the provisions of
Army Regulation 635-212, by reason of unfitness (frequent involvement in
incidents of a discreditable nature with civil or military authorities),
and that the corresponding authorized RE code was RE-3.

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 contention that his discharge and RE code should be
upgraded, and that his SPN code should be changed based on his overall
record of service, and his excellent post service conduct, and the
supporting evidence he submitted were carefully considered.  However, these
factors are not sufficiently mitigating to warrant granting the requested
relief.

2.  The evidence of record confirms that the applicant's separation
processing, to include the assignment of his SPN and RE codes, was
accomplished in accordance with the applicable regulation.  All
requirements of law and regulation were met, and the applicant's rights
were fully protected throughout the separation process.

3.  The applicant's post service conduct, as he presents it, is admirable.
However, this factor alone is not sufficiently mitigating to warrant
granting
the requested relief.  In addition, a review of his military service record
reveals
an extensive disciplinary history that clearly supported his separation for
unfitness.  As a result, it is concluded that his discharge accurately
reflects his overall record of undistinguished service.  Further, his SPN
and RE codes were properly assigned based on the authority and reason for
his separation.  Thus, they remain valid, and there is an insufficient
evidentiary basis to change either code at this time.

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 21 April 1978.  As
a result, the time for him to file a request for correction of any error or
injustice to this Board expired on 20 April 1981.  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

___SLP _  __RML __  __JGH __  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.




                                  _____Shirley L. Powell  ___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000738                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/08/15                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1972/08/30                              |
|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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