RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 October 2006
      DOCKET NUMBER:  AR20060003785


      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. Kenneth Wright                |     |Chairperson          |
|     |Mr. Thomas Ray                    |     |Member               |
|     |Ms. Sherry 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 that his undesirable discharge be upgraded to
general.

2.  The applicant states that he was discharged from the Army after a
special court-martial found him guilty for a simple assault on a
noncommissioned officer without a chance for rehabilitation.

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or
Discharge); a letter, dated 30 November 2005, from a Territorial Senator;
and a letter, dated 4 October 2005, from a Vice Mayor in Guam.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 27 March 1970.  The application submitted in this case is dated
6 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 on 21 October 1968 for a period of 3 years.  He
successfully completed basic combat training and advanced individual
training in military occupational specialty 11D (armor reconnaissance
specialist).  He arrived in Germany on 31 March 1969.

4.  On 3 September 1969, nonjudicial punishment was imposed against the
applicant for failing to obey two lawful orders.  His punishment was not
available.
5.  On 6 October 1969, contrary to his plea, the applicant was convicted by
a special court-martial of striking a sergeant on the head, face, and upper
body with his hands.  He was sentenced to be reduced to E-1, to perform
hard labor without confinement for 3 months, and to forfeit $75 per month
for 4 months.  On 6 January 1970, the convening authority approved the
sentence.

6.  On 24 November 1969, the applicant’s unit commander initiated action to
separate him under the provisions of Army Regulation 635-212 for unfitness
due to frequent incidents of a discreditable nature with civil or military
authorities.

7.  On 26 November 1969, after consulting with counsel, the applicant
waived consideration of his case by a board of officers and representation
by counsel.  He also elected not to submit a statement on his own behalf.

8.  The separation authority approved the recommendation for separation and
directed that he be furnished an undesirable discharge.  He also stated
that counseling and rehabilitation (i.e., rehabilitative transfer) were
waived since further duty of the applicant would create serious
disciplinary problems.

9.  The applicant departed Germany on 10 March 1970.

10.  On 27 March 1970, the applicant was discharged with an undesirable
discharge under the provisions of Army Regulation 635-212 for unfitness due
to frequent incidents of a discreditable nature with civil or military
authorities.  He had served 1 year, 5 months, and 7 days of creditable
active service.

11.  The applicant provided two character reference letters from a
Territorial Senator and a Vice Mayor in Guam.  The Senator attests that the
applicant is a patriotic citizen, that the applicant is proud of his
service in Germany, and that he might have been suffering with Post
Traumatic Stress Disorder then which resulted from his tour in Germany.
The Vice Mayor attests that the applicant is a reliable and good abiding
citizen in the community and that he is not aware of the applicant’s
involvement in any kind of illegal activities or trouble with the law.

12.  On 5 July 1983, the Army Discharge Review Board (ADRB) denied the
applicant’s request for a discharge upgrade.

13.  Army Regulation 635-212, 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.  An undesirable discharge was normally
considered appropriate.

14.  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.
15.  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 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 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.

DISCUSSION AND CONCLUSIONS:

1.  It is acknowledged that the separation authority waived counseling and
a rehabilitative transfer.  However, considering the seriousness of the
offenses for which the applicant was convicted and his prior misconduct, it
appears the separation authority made a reasonable determination that
further duty of the applicant would create serious disciplinary problems.


2.  The character reference letters submitted on behalf of the applicant
fail to show that his discharge was unjust and should be upgraded.

3.  The applicant’s record of service included one nonjudicial punishment
and one special court-martial conviction for assaulting a sergeant.  As a
result, his record of service was not satisfactory.  Therefore, the
applicant's record of service is insufficiently meritorious to warrant a
general discharge.

4.  The applicant’s administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

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

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 5 July 1983.  As a
result, the time for the applicant to file a request for correction of any
injustice to this Board expired on 4 July 1986.  The applicant did not file
within the 3-year statute of limitations; however, based on the available
evidence 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

KW_____  __TR____  __SS___  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 Wright_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003785                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061003                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19700327                                |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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