RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        31 August 2006
      DOCKET NUMBER:  AR20060001223


      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. Dean L. Turnbull              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |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 be
upgraded to an honorable discharge.

2.  The applicant states, in effect, that he realized that being absent
without leave (AWOL) was not the right thing to do but he was young and
foolish.  He states that the reason he went AWOL was because a stewardess
asked a lady with a child to change seats with him and the lady told her
child to get up and change seats with the baby killer.

3.  The applicant provides twelve statements from his family, friends and
co-workers.  All the statements described the applicant as a quiet,
withdrawn and easy going individual.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 2 August 1968, the date he was discharged from active
duty.  The application submitted in this case is dated 5 January 2006;
however it was received on 26 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 enlisted in the Regular Army on 4 May 1966.  After
completion of basic combat training and advanced individual training, he
was awarded military occupational specialty 11C10 (Indirect Fire
Infantryman) and was assigned to Company C, 1st Battalion, 327th Infantry,
1st Brigade,  
101st Airborne Infantry Division.

4.  The applicant's service record does not contain any record of him
receiving nonjudicial punishment under Article 15, Uniform Code of Military
Justice (UCMJ).  However, the applicant was convicted by a Special Court-
Martial on  
7 December 1967 of being AWOL from 7 October 1967 to 9 November 1967, and
by a second Special Court-Martial on 12 February 1968 of being AWOL from 11
December 1967 to 24 January 1968.
5.  On 19 July 1968, the applicant's commander notified him that he was
recommending his discharge for misconduct.

6.  The applicant then waived his rights.  In that waiver he acknowledged
that he understood that if he were issued a general of undesirable
discharge, he could be deprived of many or all Army benefits, that he could
be ineligible for many or all benefits administered by the Department of
Veterans Affairs, and that he could be deprived of his rights and benefits
as a veteran under both Federal and State law.  He also acknowledged that
he understood that he may expect to encounter substantial prejudice in
civilian life by reason of an undesirable discharge.

7.  On 26 July 1968, the appropriate authority approved the applicant’s
commander's recommendation to discharge the applicant and directed that he
receive an undesirable discharge.  On 2 August 1968, the applicant was
discharged.  The DD Form 214 he was issued shows he completed a total of  
1 year, 5 months, and 17 days of creditable active military service.

8.  There is no evidence in the applicant's records which show the
applicant applied to the Army Discharge Review Board for an upgrade of his
discharge within that board’s 15-year statute of limitation.

9.  Army Regulation 635-212 (Personnel Separations), 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.  An undesirable
discharge was normally considered appropriate.

10.  Army Regulation 635-200 (Personnel Separations), paragraph 3-7,
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 (emphasis added), or is otherwise so meritorious
that any other characterization would be clearly inappropriate.  Whenever
there is doubt, it is to be resolved in favor of the individual.

11.  Army Regulation 635-200, paragraph 3-7, 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.  The applicant requests that his DD Form 214 and his discharge be
upgraded to an honorable discharge.

2.  The applicant states he went AWOL when he was called a baby killer.
However, the applicant went AWOL twice.

3.  The applicant post-service conduct has been considered.  However, being
quiet, withdrawn and easy going is insufficient to warrant upgrading a
properly issued discharge.

4.  The submitted statements were written in support of the applicant's
character. However, the statements do not provide sufficient evidence as a
basis to upgrade the applicant's discharge to an honorable 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 satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.  Therefore, he is not
entitled to correction of his records to show an honorable discharge.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 2 August 1968; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on  
1 August 1971.  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

___jcr___  ____wdp_  ____ksj__  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.




                                  _________William D. Powers________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001223                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060831                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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