RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 October 2006
      DOCKET NUMBER:  AR20060005072


      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:

|     |Ms. Marla Troup                   |     |Chairperson          |
|     |Mr. Robert Rogers                 |     |Member               |
|     |Mr. John Heck                     |     |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
honorable.

2.  The applicant states that he should have been given an honorable
discharge because the service was a hardship on him mentally and
physically.  He contends that he grew up in the projects, that he has a 6th
grade education, that he was an alcohol abuser, that he was mentally and
emotionally unstable, and that he was ignorant of the law.

3.  The applicant provides a Report of Psychiatric Evaluation, dated 29
August 1968, and a copy of his DD Form 214 (Report of Transfer or
Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 21 October 1968.  The application submitted in this case is
dated 22 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 was inducted on 12 December 1967.  While in basic combat
training, on 31 January 1968, nonjudicial punishment was imposed against
the applicant for being absent without leave (AWOL) from 22 January 1968 to

30 January 1968.  His punishment consisted of a forfeiture of pay and
restriction.

4.  Records show the applicant went AWOL on 18 February 1968 and returned
to military control on 29 February 1968.  He went AWOL again on 9 April
1968 and returned to military control on 16 July 1968.

5.  On 29 August 1968, the applicant underwent a psychiatric evaluation.
He was diagnosed with an inadequate personality.  The psychiatrist stated
that “He has been AWOL 3 times and he is up for court martial now.  He has
had one previous court martial.  He has a 6th grade education and has some
signs of slowness of mentation; however, his intelligence seems adequate to
perform active duty in the military.  It would seem however, that he should
be separated administratively.” and “Subject EM [enlisted member] is
oriented, rational and coherent and gives no evidence of abnormal thinking
or behavior suggesting a serious mental illness.”  The psychiatrist found
that “The subject’s condition is a part of a chronic character and behavior
disorder due to deficiencies in emotional and personality development.
This condition is not amenable to hospitalization, treatment, training,
transfer or reclassification to another type of duty and renders the
subject unsuitable for military duty.”  The psychiatrist recommended that
the applicant be separated under provisions of AR [Army Regulation] 635-
212.

6.  On 24 September 1968, the applicant underwent a separation physical
examination and he was found qualified for separation.

7.  On 4 October 1968, the applicant was notified of his pending separation
under the provisions of Army Regulation 635-212 for unfitness.  After
consulting with counsel, the applicant waived consideration of his case by
a board of officers, waived a personal appearance, and waived
representation by counsel.  He also elected not to submit a statement on
his own behalf.

8.  On 10 October 1968, the applicant’s unit commander recommended the
applicant be discharged from the service under the provisions of Army
Regulation 635-212 for unfitness.  He based his recommendation for
separation on habits and traits of character manifested by repeated
commission of petty offenses and habitual shirking.

9.  On 21 October 1968, the separation authority approved the
recommendation for separation and directed that the applicant be furnished
an undesirable discharge.

10.  The applicant was discharged on 21 October 1968 with an undesirable
discharge under the provisions of Army Regulation 635-212 for unfitness due
to an established pattern for shirking.  He had served 4 months and 21 days
of total active service with 169 days lost due to AWOL.

11.  There is no evidence of record which shows the applicant was diagnosed
with alcohol abuse prior to his discharge.

12.  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.

13.  Army Regulation 635-212, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  Paragraph 6a(4) of the
regulation provided that members involved in an established pattern of
shirking were subject to separation for unfitness.  An undesirable
discharge was normally considered appropriate.

14.  Army Regulation 635-200, paragraph 3-7a, 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.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that the service was a hardship on him
mentally and physically and that he was mentally and emotionally unstable
were noted.  However, the psychiatrist determined that his intelligence was
adequate to perform active duty in the military.  The psychiatrist also
stated that he was oriented, rational and coherent and that he gave no
evidence of abnormal thinking or behavior suggesting a serious mental
illness.  In addition, he was found physically qualified for separation.

2.  There is no evidence of record to support the applicant’s contention
that he was an alcohol abuser.

3.  The applicant’s brief record of service included one nonjudicial
punishment and 169 days of lost time.  As a result, his record of service
was not satisfactory and 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 a general
discharge or an honorable 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.  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 therefore were
appropriate considering all the facts of the case.

6.  Records show the applicant should have discovered the alleged injustice
now under consideration on 21 October 1968; therefore, the time for the
applicant to file a request for correction of any injustice expired on 20
October 1971.  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

MT_____  __RR____  __JH___  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.


                                  ____Marla Troup______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060005072                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061026                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19681021                                |
|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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