RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 October 2006
      DOCKET NUMBER:  AR20060002064


      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. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Mr. Gerald J. Purcell             |     |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 discharge be upgraded.

2.  The applicant states, in effect, that he suffers with bipolar disorder,
anxiety, and depression.  The mental problems first surfaced during his
military service.  Although, he was given psychiatric treatment while in
the Army, his correct diagnosis was not given at the time.  If he had been
correctly diagnosed, and received the proper counseling and medication when
he needed it, he believes that he would have received a medical discharge
under honorable conditions.  He further states, that in the interest of
justice and fairness, his discharge should be upgraded.

3.  The applicant provides a copy of his medical records, a letter from his
doctor, statements from his relatives, and a self-authored personal appeal
in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 22 January 1970, the date of his discharge
from active duty.  The application submitted in this case is dated 30
November 2005; however, was received on 17 February 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 initially enlisted in the Regular
Army on 17 April 1969, with parental consent.  The applicant was 17 years
old at the time of his enlistment.

4.  On 7 May 1969, the applicant accepted nonjudicial punishment (NJP) for
being absent without leave (AWOL) from 4 to 6 May 1969.  His imposed
punishment was a forfeiture of $23.00 pay, 14 days restriction, and 14 days
extra duty.

5.  On 26 May 1969, the applicant was admitted to the US Army Hospital,
Fort Dix, New Jersey, for allegedly ingesting approximately 20 tablets of
Fiorinal in a suicidal gesture.  A psychiatrist diagnosed the applicant as
having an inadequate personality, chronic, severe; manifested by inadequate
response to emotional and intellectual demands, low intelligence, poor
judgment, poor emotional control and that the applicant was impaired for
further military duty.

6.  On 9 June 1969, the applicant accepted NJP for being AWOL from 1 to
7 June 1969.  His imposed punishment was an oral reprimand, 14 days
restriction, and 14 days extra duty.

7.  On 18 July 1969, the applicant was convicted by a Summary Court-Martial
(SCM) of being AWOL from 13 June to 4 July 1969.  He was sentenced to
confinement at hard labor for 30 days and a forfeiture of $50.00 pay.

8.  The applicant was convicted by a Special Court-Martial of one
specification of being AWOL from 16 August to 23 October 1969 and for one
specification of stealing a 1967 Ford Fairlane motor vehicle, valued of
about $1,800.00, property of another Soldier.  He was sentenced to
confinement at hard labor for
4 months and a forfeiture of $75.00 pay per month for 3 months.

9.  On 28 October 1969, while in a Correctional Hold Detachment Facility,
the applicant was reported for being AWOL.  He was returned to military
control on
17 January 1970.

10.  On 18 January 1970, the applicant was evaluated by a psychiatrist.
The applicant was found mentally responsible, able to distinguish right
from wrong and to adhere to the right, and had the mental capacity to
understand and participate in board proceedings.

11.  On 19 January 1970, the applicant was advised by the unit commander
that he was being recommended for discharge under the provisions of Army
Regulation 635-212, by reason of unfitness.

12.  On 20 January 1970, 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.  The applicant did
not submit a statement in his behalf.

13.  On 21 January 1970, the separation authority directed the applicant’s
separation under the provisions of Army Regulation 635-212 for unfitness
and that he receive an Undesirable Discharge Certificate.  On 22 January
1970, the applicant was discharged accordingly.  The DD Form 214 (Armed
Forces of the United States Report of Transfer or Discharge) issued to him
at the time, confirms the applicant completed a total of 3 months and
11 days of creditable active military service and that he accrued a total
of 209 days of time lost due multiple incidents of AWOL.

14.  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 contentions and the third-party statements provided by
the applicant that attest to his difficult childhood and psychological
problems were carefully considered.  However, these factors are not found
to be sufficiently mitigating to warrant the requested relief.

2.  The evidence of record reveals that after being evaluated by a
psychiatrist the applicant was diagnosed as having an inadequate
personality disorder manifested by an inadequate response to emotional
demand.  However, the applicant was also found mentally responsible, able
to distinguish right from wrong and to adhere to the right, and had the
mental capacity to understand and participate in board proceedings.
Although, the applicant has now been diagnosed with a number of medical and
mental disorders, this specific diagnostic label given to the applicant
more than three decades after his separation does not call into question
the application of then existing fitness standards that were applied at the
time of his discharge.

3.  The evidence of record also reveals that the applicant had an extensive
disciplinary history of military infractions that ultimately led to his
discharge.  Based on this record of indiscipline, the applicant's service
clearly does not meet the standards of acceptable conduct and performance
of duty for Army personnel.  Therefore, given the circumstances in this
case, there is insufficient evidence to grant his request.

4.  The evidence of record further confirms the applicant’s separation
processing was accomplished in accordance with the applicable regulation.
All requirements of law and regulation were met and the rights of the
applicant were fully protected throughout the separation process.  Further,
the applicant’s undesirable discharge accurately reflects his overall
record of undistinguished service.
5.  In order to justify correction of a military record the applicant must
satisfactorily show, or it must otherwise satisfactorily appear, that the
record is in error or unjust.  The applicant has failed to submit
sufficient evidence that would satisfy this requirement.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 January 1970; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
21 January 1973.  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

___JI ___  ___GJP__  ___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.




                                               John Infante___---
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/10/12                              |
|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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