RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 October 2006
      DOCKET NUMBER:  AR20060002692


      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             |
|     |Mrs. Phyllis M. Perkins           |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Melinda M. Darby              |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. Ronald D. Gant                |     |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.

2.  The applicant states, in effect, that he was introduced to drugs during
his tour in the Republic of Vietnam.  He further states after returning
stateside he was busted along with other servicemen in a car with drugs.
As a result, he was given the choice of a court-martial or to be discharged
from the military, and he decided to take the discharge.

3.  The applicant provides a copy of DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge), effective 13 December 1971,
in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 13 December 1971, the date of his separation from active duty.
The application submitted in this case is dated 9 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 he enlisted in the Regular Army on 18 July

1969, for a period of three years.  He was trained in, awarded, and served
in military occupational specialty (MOS) 76V20 (Equipment Storage
Specialist), and
the highest rank he attained while serving on active duty was specialist
four (SP4).

4.  The applicant's record shows he served in the Republic of Vietnam
during the period 21 December 1969 through 20 December 1970.  It also shows
he received numerous awards, which included the National Defense Service
Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with 1960
Device, and 2 Overseas Bars.

5.  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
four separate occasions for the offenses indicated: 26 January 1971, for
being absent without leave (AWOL) during the period 9 January 1971 through
18 January 1971; 6 May 1971, for failure to report to work; 17 September
1971, for being AWOL during the period 25 August 1971 through 27  August
1971; and 28 September 1971, for failure to go to his appointed place of
duty.

6.  The applicant's record is void of a separation packet containing the
facts and circumstances surrounding the applicant's separation processing.
The record does include a DD Form 214 the applicant was issued on 13
December 1971, the date of his separation.  This document shows he was
separated under the provisions of chapter 10, Army Regulation 635-200, for
the good of the service in lieu of trial by court-martial.  It also shows
that at the time of his separation he had completed a total of 2 years, 4
months, and 26 days of creditably active military service, and that he had
accrued 19 days of time lost due to AWOL.  The applicant authenticated this
document with his signature in item 32 (Signature of Person Being
Separated) on the date of his separation.

7.  On 14 May 1980 the Army Discharge Review Board denied the applicant's
petition to upgrade his discharge.

8.  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.

9.  Army Regulation 635-200 (Personnel Separations) sets forth the basic
authority for the separation of enlisted personnel.  Chapter 10 provides,
in pertinent part, that a member who has committed an offense or offenses
for which the authorized punishment includes a punitive discharge may,
after the charges have been preferred, submit a request for discharge for
the good of the service in lieu of trial by court-martial.  A discharge
under other than honorable conditions is normally considered appropriate.
However, at the time of the applicant's separation the regulation provided
for the issuance of an undesirable discharge.
10.  Army Regulation 635-200, 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. It further provides that a general, under
honorable conditions 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's contention that his undesirable discharge should be
upgraded was carefully considered.  However, there is insufficient evidence
to support this claim.

2.  The evidence of record confirms the applicant's separation processing
was accomplished in accordance with the applicable regulation in effect at
the time. All requirements of law and regulation were met, and the rights
of the applicant were fully protected throughout the separation process.
Absent any evidence that the applicant's discharge was not proper and
equitable, Government regularity must be presumed in this case.

3.  The applicant's record of service shows that he received four
nonjudical punishments for two separate instances of AWOL totaling 19 days,
failure to report to work and failure to go to appointed place of duty.
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.  This misconduct and lost time also renders his service
unsatisfactory.  Therefore, he is not entitled to either a general or
honorable discharge.

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 14 May 1980.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to this Board expired on 13 May 1983.  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

_MMD___  __JCR__  _RDG___  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.




                                     _Melinda M. Darby __
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060002692                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061019                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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