RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 October 2006
      DOCKET NUMBER:  AR20060005130


      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. Carmen Duncan                 |     |Chairperson          |
|     |Mr. Jerome Pionk                  |     |Member               |
|     |Ms. Rea Nuppenau                  |     |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 a
general discharge.

2.  The applicant states that he was sexually abused when he was 11 years
old, that his parents had a messy divorce when he was 14 years old, that he
quit school after the 9th grade, and that he joined the Army when he was 17
years old.  He also contends that he weighed 250 pounds when he joined the
Army under a medical waiver.  He states that he was too immature to be in
the Armed Forces along with all his other problems.

3.  The applicant provides 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 19 January 1970.  The application submitted in this case is
dated 30 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 born on 13 May 1951.  Having a waiver for being
overweight, the applicant enlisted in the Regular Army under the Medical
Remedial Enlistment Program on 18 September 1968 for a period of 3 years.

4.  While in basic combat training, on 19 December 1968, nonjudicial
punishment was imposed against the applicant for being absent without leave
(AWOL) from 12 December 1968 to 18 December 1968.  His punishment consisted
of a forfeiture of pay, extra duty, and restriction.

5.  While in basic combat training, on 8 January 1969, nonjudicial
punishment was imposed against the applicant for being AWOL for 6 and 1/2
hours on
6 January 1969.  His punishment consisted of restriction.

6.  While in basic combat training, on 21 January 1969, in accordance with
his plea, the applicant was convicted by a summary court-martial of
breaking restriction.  He was sentenced to be confined at hard labor for 30
days and to forfeit $50.  On 21 January 1969, the convening authority
approved the sentence.

7.  While in basic combat training, on 28 March 1969, in accordance with
his plea, the applicant was convicted by a special court-martial of being
AWOL from 15 February 1969 to 12 March 1969.  He was sentenced to be
confined at hard labor for 6 months and to forfeit $68 for 6 months.  On 24
April 1969, the convening authority approved the sentence but suspended
confinement at hard labor in excess of 1 month for 6 months.  On 30 June
1969, the suspended portion of the sentence to confinement was vacated.

8.  The applicant completed basic combat training and advanced individual
training in military occupational specialty 63B (wheel vehicle repairman).

9.  On 12 December 1969, in accordance with his plea, the applicant was
convicted by a special court-martial of being AWOL from 1 July 1969 to
17 September 1969.  He was sentenced to forfeit $75 for 5 months and to be
confined at hard labor for 5 months.  On 17 December 1969, the convening
authority approved the sentence.  On 19 January 1970, the unexecuted
portion of the sentence to confinement was remitted.

10.  The facts and circumstances surrounding the applicant’s discharge are
not contained in the available records.  However, the applicant’s DD Form
214 shows that he was discharged with an undesirable discharge on 19
January 1970 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 a total of 6 months and 22 days of creditable
active service with 285 days of lost time due to AWOL and confinement.  His
DD Form 214 also shows that the highest civilian education level attained
was high school (9th grade).

11.  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.

12.  Army Regulation 635-212, in effect at the time, set for 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.

13.  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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were noted.  However, age is not a
sufficiently mitigating factor and personal/family problems are not grounds
for upgrading a discharge.  There is no evidence the applicant sought
assistance from his chain of command or chaplain on a way to resolve his
problems within established Army procedures.

2.  In the absence of evidence to the contrary, it must be presumed that
the applicant’s separation was administratively correct and in conformance
with applicable regulations.  Without having the discharge packet to
consider, it is presumed his characterization of service was commensurate
with his overall record of service.  As a result, there is no basis for
granting the applicant's request for an honorable or general discharge.

3.  Records show the applicant should have discovered the alleged injustice
now under consideration on 19 January 1970; therefore, the time for the
applicant to file a request for correction of any injustice expired on 18
January 1973.  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

CD_____  _JP_____  _RN____  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.




                                  __Carmen Duncan_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060005130                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061024                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19700119                                |
|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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