RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 October 2006
      DOCKET NUMBER:  AR20060002111


      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. Maria C. Sanchez              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Kenneth L. Wright             |     |Chairperson          |
|     |Mr. Thomas M. Ray                 |     |Member               |
|     |Ms. Sherry J. Stone               |     |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 an upgrade of his discharge to an honorable
discharge.

2.  The applicant states, in effect, that although his discharge was not in
error or unjust, he has grown up since his military service.  The applicant
continues that he is trying to improve his life by making amends for the
things he did while he was young.

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
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 31 October 1973, the date of his separation.  The
application submitted in this case is dated 2 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 enlisted in the Army on 17 January 1972, at the age of 17
with parental consent, for a period of three years.  After completion of
basic and advanced individual training, he was awarded military
occupational specialty 94B (Cook).

4.  The applicant's service records reveal a disciplinary history that
includes his acceptance of nonjudicial punishment (NJP) under the
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on
the following five separate occasions for the offenses indicated:  on 7
April 1972, for being absent without leave (AWOL) during the period 31
March 1972 through 5 April 1972; on 8 September 1972, for disobeying a
lawful order; on 14 August 1973, for being
AWOL during the period 6 August 1973 through 14 August 1973; on 5 September
1973, for failure to go to his appointed place of duty; and on 11 September
1973, for failure to go to his appointed place of duty.

5.  An ORD Form 700 (Conduct and Efficiency Ratings), dated 2 May 1973,
shows that the applicant received punishment under Article 15 of the UCMJ
for violation of Article 92 (Failure to obey order or regulation).

6.  The applicant's service records contain a Federal Bureau of
Investigation Identification Division form, dated 29 June 1973, which shows
that the applicant was arrested by civilian authorities for possession of
marijuana.

7.  The facts and circumstances surrounding the applicant's discharge were
not contained in the available records.

8.  The applicant's DD Form 214 shows that he was discharged on 31 October
1973, under the provisions of chapter 13 of Army Regulation 635-200
(Personnel Separations Enlisted Personnel), for unfitness and issued an
Undesirable Discharge Certificate with service characterized as under other
than honorable conditions.  He served 1 year, 9 months, and 3 days of net
active service and had 12 days of lost time.

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

10.  Army Regulation 635-200 sets forth the requirements and procedures for
administrative discharge of enlisted personnel.  At that time, paragraph 13-
5a provided that individuals would be discharged by reason of unfitness
when their records were characterized by one or more of the following:  a)
frequent incidents of a discreditable nature with civil or military
authorities; b)  sexual perversion; c)  drug abuse; d)  an established
pattern of shirking; e)  an established pattern showing dishonorable
failure to pay just debts; f)  an established pattern showing dishonorable
failure to contribute adequate support to dependents; and/or g)  homosexual
acts.  This regulation prescribed that an undesirable discharge was
normally issued unless the particular circumstances warranted a general or
an honorable discharge.




11.  Army Regulation 635-200, paragraph 3-7a, 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.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded to an
honorable discharge because he has "grown up a lot" and is trying to make
his life better.

2.  Records show the applicant enlisted at the age of 17 with parental
consent.  There is no evidence that indicates the applicant was any less
mature than other Soldiers of the same age who successfully completed
military service.

3.  The applicant's record of service included five nonjudical punishments
for various offenses including being AWOL, disobeying a lawful order, and
for failure to go to his appointed place of duty.  Evidence of record also
shows the applicant was arrested by civil authorities for possession of
marijuana.

4.  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.  Additionally, his service is deemed unsatisfactory in
view of his extensive misbehavior and 12 days of AWOL.  Therefore, he is
not entitled to either a general or an honorable discharge.

5.  In the absence of evidence to the contrary, it is presumed that all
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout the separation process.

6.  Accordingly, the type of discharge directed and the reason for
discharge are appropriate considering all the facts of the case.
7.  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.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 October 1973; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 30 October 1976.  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

__KLW___  _SJS__  _TMR____  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.



                                     _Kenneth L. Wright___
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060002111                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061003                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19731031                                |
|DISCHARGE AUTHORITY     |AR 635-200, chapter 13                  |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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