RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            19 September 2006
      DOCKET NUMBER:   AR20060004437


      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             |
|     |Mr. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Ms. Meribeth Love                 |     |Member               |
|     |Mr. Thomas Ray                    |     |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.

2.  The applicant states, in effect, that he was discharged under other
than honorable conditions after 2 years of service for unspecified reasons.


3.  The applicant provides no additional documents with his records.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 1 January 1970.  The application submitted in this case is
dated 20 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 in Newark, New Jersey on 16 January 1968 for a
period of 3 years and training in the clerical career group.  He was
transferred to Fort Dix, New Jersey to attend his basic combat training
(BCT).

4.  On 6 February 1968, nonjudicial punishment (NJP) was imposed against
him for being absent without leave (AWOL) from 2 February to 3 February
1968.  His punishment consisted of a forfeiture of pay, restriction and
extra duty.

5.  On 28 February 1968, NJP was imposed against him for being absent from
his unit from 0200 to 2200 hours on 25 February 1968.  His punishment
consisted of a forfeiture of pay, extra duty and restriction.

6.  On 26 April 1968, he was convicted by a special court-martial of being
AWOL from 9 March to 7 April 1968 and for breaking restriction.  He was
sentenced to confinement at hard labor for 6 months and a forfeiture of
pay.  However, the convening authority approved only so much of the
sentence as pertained to confinement at hard labor for 1 month and
suspended the remainder of the confinement sentence for 6 months, unless
sooner vacated.

7.  He completed his BCT and was transferred to Fort Polk, Louisiana to
undergo his advanced individual training as a general clerk.  He completed
his training and was transferred to Okinawa on 3 October 1968.  He was
advanced to the pay grade of E-3 on 10 January 1969.

8.  On 19 May 1969, NJP was imposed against him for disobeying a lawful
order from a superior noncommissioned officer (NCO) to get out of bed.  His
punishment consisted of a reduction to the pay grade of E-2 (suspended for
30 days), a forfeiture of pay and extra duty.

9.  On 23 June 1969, NJP was imposed against him for failure to go to his
place of duty on 10 June 1969.  His punishment consisted of a reduction to
the pay grade of E-2, a forfeiture of pay and extra duty.

10.  On 11 July 1969, NJP was imposed against him for three specifications
of failure to go to his place of duty.  His punishment consisted of a
forfeiture of pay, extra duty and restriction.

11.  On 18 August 1969, NJP was imposed against him for missing bed check
and two specifications of failure to go to his place of duty.  His
punishment consisted of a forfeiture of pay.

12.  On 27 September 1969, NJP was imposed against him for missing bed
check.  His punishment consisted of extra duty and restriction.

13.  The applicant went AWOL on 26 October and remained absent until
28 October 1969.  The record is silent as to any punishment imposed for
that offense.

14.  On 30 October 1969, the applicant’s commander initiated action to
separate him from the service under the provisions of Army Regulation 635-
212 for unfitness due to an established pattern of shirking.  He cited the
applicant’s disciplinary record, his recent charge of AWOL, suspicion of
possession of marijuana and a dangerous drug, repeated commission of petty
offenses, his overall obstinate behavior and his failure to respond to
rehabilitation efforts as the basis for his recommendation.

15.  On 13 November 1969, the applicant underwent a psychiatric evaluation
and was deemed to have an antisocial personality.  The examining
psychiatrist opined that the applicant was an extremely hostile, immature
man who refused to take responsibility for his actions.  The psychiatrist
indicated that the applicant stated that he was not willing to conform to
any standards within the Army setting and would continue to act out at
every opportunity.  The psychiatrist opined that there were no
disqualifying mental defects sufficient to warrant disposition through
medical channels for psychiatric reasons.  He also opined that it was
unlikely that the applicant would ever be productive to the military and
recommended that the applicant be separated as expeditiously as possible.

16.  After consulting with defense counsel, the applicant waived all of his
rights and declined to submit a statement in his own behalf.

17.  The appropriate authority (a major general) approved the
recommendation for discharge on 13 December 1969 and directed that the
applicant be furnished an Undesirable Discharge Certificate.

18.  Accordingly, he was discharged under other than honorable conditions
on 1 January 1970, under the provisions of Army Regulation 635-212 for
unfitness due to an established pattern of shirking.  He had served 1 year,
9 months and 19 days of total active service and had 27 days of lost time
due to AWOL and confinement.

19.  He applied to the Army Discharge Review Board (ADRB) on 28 February
1984 requesting that his undesirable discharge be upgraded to a general
discharge.  He was granted a personal appearance before that board’s
traveling panel in New York on 17 May 1985 and was represented by counsel.
He asserted at that time that his good post service conduct and his
personality disorder were sufficiently mitigating to warrant an upgrade of
his discharge because he had not been in any trouble since his discharge.
The ADRB found that his discharge was both proper and equitable under the
circumstances and denied his request on 13 June 1985.

20.  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.

21.  Army Regulation 635-212, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  It provided, in
pertinent part, that members involved in frequent incidents of a
discreditable nature with civil or military authorities and/or established
a pattern of habitual shirking were subject to separation for unfitness.
An undesirable discharge was normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, for the good of the service to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate under the circumstances.

3.  The applicant began a period of misconduct almost immediately after
entering the Army and his repeated misconduct continued until his
discharge.

4.  The applicant's contentions as well as his overall record of service
have been considered.  However, they are not sufficiently mitigating to
warrant relief when compared to his repeated misconduct and overall
undistinguished record of service.  Accordingly, his service simply does
not rise to the level of even a general discharge.

5.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 13 June 1985.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 12 June 1988.  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

____JA__  ____ML _  ___TR __  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.




                                  ____James Anderholm____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004437                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060919                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1970/01/01                              |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |Unfit                                   |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |583/a51.00                              |
|1.144.5000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]