RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      19 October 2006
      DOCKET NUMBER:  AR20060003022


      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. Stephanie Thompkins           |     |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, upgrade of his undesirable discharge
to honorable.

2.  The applicant states, in effect, that his discharge was due to the
stress of combat.  He also states that he did not know what type of
discharge he received until the year 2005.  Due to a life long weakness in
reading, he did not read the details of his discharge.  He was unaware of
the type of discharge he received.  In 2005, he requested more information
and did not have a copy of his discharge papers.

3.  The applicant provides copies of his DD Form 4 (Enlistment Record,
Armed Forces of the United States), his DA Form 1049 (Personnel Action),
his DD Form 214 (Report of Transfer or Discharge), and three character
reference letters, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 20 March 1967, the date of his discharge.  The application
submitted in this case is dated 14 February 2006, but was received for
processing on 1 March 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 military records show that he enlisted in the Regular
Army, on 12 November 1964, in pay grade E-1, for 3 years.  He completed
training and was assigned military occupational specialty (MOS) 63E, Heavy
Equipment Repairman.

4.  On 26 May 1965, the applicant was convicted by a special court-martial
of being absent without leave (AWOL) from 23 April 1965 to 8 May 1965.  His
sentence was two months of hard labor without confinement, forfeiture of
$50.00 pay per month for 6 months, and reduction to pay grade E-1.

5.  The applicant's records show he served in Vietnam from 30 September
1965 through 29 September 1966, in MOS 56B (stock checker) and 56A
(petroleum dispenser operator), respectively.

6.  On 23 January 1967, he was punished under Article 15, Uniform Code of
Military Justice (UCMJ), for being absent from his organization from 19
January to 21 January 1967.  His punishment included reduction to pay grade
E-3 and 14 days restriction and 14 days extra duty.

7.  On 2 February 1967, the applicant was convicted by a summary court-
martial of AWOL from 26 January 1967 to 27 January 1967 and breaking
restriction on 29 January 1967.  His sentence was 45 days of hard labor
without confinement, restriction to the company for 45 days, and reduction
to pay grade E-2.

8.  On 14 February 1967, he was punished under Article 15, UCMJ, for being
absent from his organization from 13 February to 14 February 1967.  His
punishment was a forfeiture of $26.00 pay for one month.

9.  A Report of Psychiatric Evaluation, dated 17 February 1967, shows the
applicant was evaluated for his emotionally unstable personality by a
medical corps major.  The evaluation deemed he displayed a passive
dependent type personality disorder.  The evaluation cleared the applicant
for administrative action as deemed appropriate by the command.

10.  On 21 February 1967, the applicant's commander recommended that he be
eliminated from the service under the provisions of Army Regulation 635-
212, for unfitness with an undesirable discharge certificate.  The
commander recommended that the applicant appear before a board of officers.
 The commander stated that the discharge was recommended because of the
applicant's inability to adjust, continuous shirking of duty, and general
behavior.  The commander also stated that the applicant had one special
court-martial for AWOL and one summary court-martial for AWOL.  In
addition, the applicant had two Articles15 for AWOL.

11.  On 3 March 1967, the applicant, through counsel, acknowledged receipt
of the proposed elimination from the service for unfitness.  He elected not
to have his case heard before a board of officers, elected not to submit a
statement in his own behalf, and stated he understood that he might be
issued an undesirable discharge under conditions other than honorable, and
the results of issuance of an undesirable discharge.

12.  On 9 March 1967, the appropriate separation authority approved the
discharge under the provisions of Army Regulation 635-212, with an
Undesirable Discharge Certificate.

13.  On 20 March 1967, the applicant was advised that he was being
discharged with an undesirable discharge.  He was also advised that if he
felt he should have received a higher type of discharge, he could request a
review of his discharge by the Army Discharge Review Board (ADRB) within 15
years after the effective date of his discharge.

14.  The applicant was discharged on 20 March 1967, in pay grade E-1, under
the provisions of Army Regulation 635-212, by reason of unfitness.  He was
credited with 2 years, 3 months, and 20 days net service.  His character of
service was under conditions other than honorable.

15.  There is no evidence of record that the applicant applied for a
discharge upgrade to the ADRB within its 15-year statute of limitations.

16.  The applicant submits three character letters attesting to his post
service conduct as a martial arts instructor and his proper handling of his
account with the Branch Banking and Trust Company.

17.  Army Regulation 635-212 (Enlisted Soldiers), 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.  Action to
separate an individual was to be taken when, in the judgment of the
commander, rehabilitation was impractical or was unlikely to produce a
satisfactory Soldier.  An undesirable discharge was normally considered
appropriate.

18.  Army Regulation 635-200, paragraph 3-7a of this regulation provides
that an honorable discharge is a separation with honor.  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, or is otherwise so meritorious that any other
characterization would be inappropriate.

19.  Army Regulation 635-200, paragraph 3-7b, also 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.  In view of the circumstances in this case, the applicant is not
entitled to an upgrade of his discharge.  The applicant has submitted
neither probative evidence nor a convincing argument in support of his
request and has not shown error, injustice, or inequity for the relief, he
now seeks.

2.  The applicant's contentions have been noted; however the applicant’s
records show he was punished twice under Article 15, UMCJ, and received one
special court-martial and one summary court-martial for being AWOL.  The
applicant's commander recommended that he be discharged because of his
inability to adjust, continuous shirking of duty and his general behavior.
The applicant’s misconduct thus diminished the quality of his service below
that meriting a fully honorable discharge or general discharge.

3.  The applicant's contentions that he did not know the type of
discharge he was receiving due to his life long weakness in reading or
that he did not know what type of discharge he received until 2005 have
also been noted.  However, the applicant underwent a psychiatric
evaluation for the purpose of his possible separation from the service.
The applicant, through counsel, also acknowledged the proposed action to
eliminate him from the service for unfitness and elected not to have
his case heard before a board of officers and not to submit a statement
in his own behalf.  The applicant further acknowledged that he was being
discharged with an undesirable discharge and he was advised that if he
felt he should receive a higher type of discharge, he could request a
review of his discharge by the ADRB within 15 years after the effective
date of his discharge.  His records do not show he applied to the ADRB
within the 15 years from the date of his discharge.

4.  The applicant has provided insufficient evidence to show that his
discharge was due to combat stress.  While in Vietnam, the record shows the
applicant performed non-combatant duties.  He also has not provided
evidence sufficient to mitigate the character of his discharge.  In the
absence of evidence to the contrary, the character of the discharge is
commensurate with the applicant's overall record of military service.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 March 1967, the date of his
discharge
from active duty; therefore, the time for the applicant to file a request
for correction of any error or injustice expired on 19 March 1970.  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.

6.  In view of the foregoing, there is no basis for granting the
applicant's request.

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                 |AR20060003022                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061019                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |A70                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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