RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 November 2006
      DOCKET NUMBER:  AR20060005018


      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. Dean L. Turnbull              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Curtis L. Greenway            |     |Chairperson          |
|     |Mr. Thomas M. Ray                 |     |Member               |
|     |Ms. Peguine M. Taylor             |     |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 an
honorable discharge.

2.  The applicant states, in effect, that his discharge was not an
honorable discharge.

3.  The applicant provides a copy of a letter from the County of Kern,
Mental Health System of Care, dated 24 March 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on  
22 October 1971, the date of his discharge from active duty.  The
application submitted in this case is dated 24 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 entered active duty on 2
May 1966.  The applicant completed basic combat training and advanced
individual training and was awarded the military occupational specialty
11B1O (Rifleman).

4.  On 3 August 1966, the applicant accepted nonjudicial punishment (NJP)
under the provisions of Article 15, Uniform Code of Military Justice
(UCMJ), for being absent without leave (AWOL) during the period 31 July
1966 to on or about 1830 hours 1 August 1966.

5.  On 18 August 1966, the applicant accepted NJP under the provisions of
Article 15, UCMJ, for being AWOL during the period 8 August 1966 to on or
about 2000 hours 11 August 1966.  His punishment included a forfeiture of
$48.00 pay per month for two months.

6.  The applicant's records show that he served a tour in the Republic of
Vietnam during the period 28 June 1967 to 25 March 1968.

7.  His records show that he was AWOL during the periods of 17 April 1968
to  
19 April 1968; 9 May 1968 to 14 May 1968; and 10 August 1968 to 10 October
1968.

8.  His records further show he was AWOL during the period 14 October 1968
to 17 December 1968; 29 December 1968 to 12 February 1969; and 16 April  
1969 to 17 October 1969.

9.  On 31 October 1969, charges were preferred against the applicant for
four specifications of AWOL.

10.  On 18 November 1969, the applicant pled guilty and was found guilty of
all specifications.  He was sentenced to a forfeiture of $50.00 pay per
month for
4 months and to be reduced to the grade of Private/pay grade E-2.

11.  On 14 January 1970, the sentence was duly executed.

12.  While the applicant was assigned to the Special Processing Detachment,
Fort Ord, California, he was AWOL during the period 3 April 1971 to 12
April 1971 and he was dropped from the rolls of the U.S. Army during the
period
13 April 1971 to 30 August 1971.

13.  On 22 October 1971, the applicant was discharged for the good of the
service under conditions other than honorable.  He had completed 4 years
and
2 days of active service and he had 420 days of time lost.

14.  There is no evidence that the applicant applied to the Army Discharge
Review Board for an upgrade of his discharge within its 15-year statute of
limitations.

15.  Army Regulation 635-200, in effect at the time, provided that a
Soldier whose conduct has rendered him triable by court-martial for an
offense punishable by a bad conduct or dishonorable discharge may request a
discharge for the good of the service in lieu of a trial.  The regulation
required that there was no element of coercion involved in the submission
of such a request and that the applicant was provided an opportunity to
consult with counsel (a member of the Judge Advocate Generals Corps or a
person qualified under Article 27(b)(1) of the Uniform Code of Military
Justice).  The Soldier was also required to sign the request indicating he
understood that he may receive a discharge under other than honorable
conditions and the adverse nature of such a discharge.  The regulation also
required that the request be forwarded through channels to the general
court-martial convening authority.  The regulation also provided that an
undesirable discharge certificate will normally be furnished to an
individual who is discharged for the good of the service and that the
reason for discharge will be “FOR THE GOOD OF THE SERVICE, SPN 246.

16.  Army Regulation 635-200 (Personnel Separations), 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.  Army Regulation 635-200, paragraph 3-7, 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.  The applicant requests that his undesirable discharge be upgraded to an
honorable discharge.

2.  The letters from the County of Kern Mental Health System of Care
concerning his antisocial behavior are noted.  However, his post-service
antisocial behavior is not sufficient for upgrading a properly issued
discharge.

3.  Evidence shows the applicant was AWOL during the periods 8 August 1966
to 10 August 1966; 17 April 1968 to 19 April 1968; 9 May 1968 to 14 May
1968;  
10 August 1968 to 10 October 1968; 14 October 1968 to 17 December 1968;  
29 December 1968 to 12 February 1969; 16 April 1969 to 17 October 1969;  
3 April 1971 to 12 April 1971; and dropped from the rolls of the U.S. Army
during the period 13 April 1971 to 30 August 1971.  Based on this record of
repeated misconduct, an undesirable discharge was equitable and proper.

4.  Based on his record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  His length of AWOL renders his service unsatisfactory.
 Therefore, he is not entitled to either an honorable or a general
discharge.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 October 1971; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on  
21 October 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

___tmr___  ___clg__  ___pmt __  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.




                                  _________Curtis L. Greenway_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060005018                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061114                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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