RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 September 2006
      DOCKET NUMBER:  AR20060003777


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William Crain                 |     |Chairperson          |
|     |Mr. Jeffrey Redmann               |     |Member               |
|     |Mr. David Tucker                  |     |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 that his general discharge be upgraded to
honorable.

2.  The applicant states, in effect, that he requested his discharge to
assist his family during extremely dire times for his mother and the Army
refused to let him go.  He contends that his commander assisted with the
type discharge he received, that his commander told him it was the only way
out so he accepted it, and that his commander told him that his discharge
would be changed in the future.  He states that he is proud of his service
as a paratrooper and door gunner in Vietnam.  He points out that he raised
his children and is now assisting with his grandchildren, that he
volunteers as a baseball and football coach, and that he donates his time
to help people in his community.

3.  The applicant provides no additional evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 17 December 1971.  The application submitted in this case is
dated 10 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 enlisted on 20 June 1969 for a period of 3 years.  He
successfully completed basic combat training, advanced individual training,
and basic airborne training.  He was awarded military occupational
specialty 71H (personnel specialist).  He arrived in Vietnam on 14 January
1970.  On
24 February 1970, the applicant was honorably discharged for immediate
reenlistment.  He reenlisted on 25 February 1970 for a period of 3 years.

4.  On 6 August 1970, while in Vietnam, nonjudicial punishment was imposed
against the applicant for sleeping on post (while posted as a guard).  His
punishment consisted of a forfeiture of pay.

5.  On 31 August 1970, while in Vietnam, nonjudicial punishment was imposed
against the applicant for being absent without leave (AWOL) from his place
of duty.  His punishment consisted of a forfeiture of pay.

6.  On 7 October 1970, while in Vietnam, nonjudicial punishment was imposed
against the applicant for sleeping on post (while posted as a sentinel in
an area designated for entitlement to special pay for duty subject to
hostile fire).  His punishment consisted of a reduction to E-3 and a
forfeiture of pay.

7.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he
served as a door gunner and helicopter crew chief during the period 7 June
1970 to
4 December 1970 in Vietnam.  He departed Vietnam on 14 December 1970.

8.  On 29 March 1971, nonjudicial punishment was imposed against the
applicant for being AWOL from 17 March 1971 to 28 March 1971.  His
punishment consisted of a reduction to E-2, a forfeiture of pay, and extra
duty.

9.  On 4 August 1971, nonjudicial punishment was imposed against the
applicant for being AWOL from 25 July 1971 to 30 July 1971.  His punishment
consisted of a reduction to E-3 (suspended) and extra duty.

10.  On 5 November 1971, the applicant was notified of his pending
separation under the provisions of Army Regulation 635-212 for
unsuitability.  The unit commander cited that a defective attitude and
apathy were among the many adverse character traits manifested in the
applicant’s behavior.  He stated that the applicant’s undisciplined and
immature behavior hindered his performance of military duty in a
satisfactory and responsible manner and he cited the applicant’s repeated
AWOL periods.

11.  On 11 November 1971, the applicant consulted with counsel, waived
consideration of his case by a board of officers, waived a personal
appearance, and elected not to submit a statement on his own behalf.  He
also acknowledged that he understood he might expect to encounter
substantial prejudice in civilian life in the event a general discharge was
issued to him.

12.  On 10 December 1971, the separation authority approved the
recommendation for separation and directed the issuance of a general
discharge.

13.  Accordingly, the applicant was discharged on 17 December 1971 with a
general discharge under the provisions of Army Regulation 635-212 for
unsuitability due apathy, defective attitudes and inability to expend
effort constructively.  He had served a total of 2 years and 4 months with
57 days of lost time due to AWOL.
14.  There is no indication in the available records that the applicant
applied to the Army Discharge Review Board for a discharge upgrade within
its 15-year statute of limitations.

15.  Army Regulation 635-212, in effect at the time, set forth the policy
and prescribed procedures for eliminating enlisted personnel for unfitness
and unsuitability.  Action was to be taken to discharge an individual for
unsuitability when, in the commander's opinion, it was clearly established
that the individual was unlikely to develop sufficiently to participate in
further military training and/or become a satisfactory Soldier and he met
retention medical standards.  Unsuitability included inaptitude; character
and behavior disorders; apathy, defective attitudes, and inability to
expend effort constructively; alcoholism; and enuresis.  A general or
honorable discharge was considered appropriate.

16.  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.  Whenever there is doubt, it is to be
resolved in favor of the individual.

17.  The U.S. Army does not have, nor has it ever had, a policy to
automatically upgrade discharges.  Each case is decided on its own merits
when an applicant requests a change in discharge.  Changes may be warranted
if the Board determines that the characterization of service or the reason
for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  A discharge upgrade is not automatic.

2.  Good post service conduct alone is not a basis for upgrading a
discharge.

3.  Since the applicant’s record of service included five nonjudicial
punishments and 57 days of lost time, his record of service did not meet
the standards of acceptable conduct and performance of duty for Army
personnel.  Therefore, the applicant's record of service is insufficiently
meritorious to warrant an honorable discharge.

4.  The applicant's administrative separation was accomplished in
compliance with applicable regulation with no indication of procedural
errors which would tend to jeopardize his rights.  He had an opportunity to
submit a statement in which he could have voiced his concerns and he failed
to do so.

5.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.

6.  Records show the applicant should have discovered the alleged injustice
now under consideration on 17 December 1971; therefore, the time for the
applicant to file a request for correction of any injustice expired on 16
December 1974.  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

WC____  _JR_____  _DT______  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 Crain___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003777                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060921                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19711217                                |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |Unsuitability                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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