RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 December 2006
      DOCKET NUMBER:  AR20060005748


      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. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. Dale E. DeBruler              |     |Member               |
|     |Mr. Larry W. Racster              |     |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 service in the Republic of
Vietnam affected his ability to adjust and to get along with his first
sergeant.  He states that he served honorably in the Republic of Vietnam,
and that he received awards and decorations for serving in combat.

3.  Also, he states that his record of being absent without leave (AWOL)
does not show his reason for going AWOL.  He further states that he did not
have enough time to adjust from the war and no one helped him make the
transition from Soldier to civilian life.

4.  The applicant provides three written statements in support of his case.
 The statements provide a synopsis of the applicant's character and his
achievements.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 17 September 1971, the date of his discharge from active duty.
The application submitted in this case is dated 10 April 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 records show he entered active duty on 5 August 1969.
He attended basic combat training and advanced individual training and was
awarded the military occupational specialty 64A1O (Light Vehicle Driver).

4.  His records show that he served a tour of duty with Company C,  
69th Engineer Battalion (Construction) in the Republic of Vietnam during
the period 13 March 1970 to 28 January 1971.  His highest grade held was
specialist/pay grade E-4.

5.  On 2 March 1970, the applicant accepted nonjudicial punishment (NJP)
under the provisions of Article 15, Uniform Code of Military Justice
(UCMJ), for being AWOL during the period 31 January 1970 to 26 February
1970.  His punishment consisted of a forfeiture of $60.00 per month for two
months, reduction to private/pay grade E-1, and restriction to the company
area for a period of  
30 days.

6.  On 18 May 1970, the applicant accepted NJP under the provisions of
Article 15, UCMJ, for violation of a general regulation.  His punishment
consisted of reduction to Private/pay grade E-2.

7.  On 6 October 1970, the applicant accepted NJP under the provisions of
Article 15, UCMJ, for willful disobedience of a lawful order from a
commissioned officer, disorderly conduct, and communicating a threat.  His
punishment consisted of a forfeiture of $57.00 per month for one month,
reduction to private first class/pay grade E-3 (suspended for 30 days),
extra duty for 14 days, and restriction to the company area for a period of
14 days.

8.  On 28 January 1971, the applicant accepted NJP under the provisions of
Article 15, UCMJ, for possession of habit-forming narcotic drugs
(barbiturates).  His punishment consisted of a reduction to private/pay
grade E-2, a forfeiture of $35.00 per month for one month, and restriction
to the company area for a period of 14 days.

9.  On 2 June 1971, charges were preferred against the applicant for one
specification of being AWOL during the period 3 to 30 May 1971.

10.  On 30 July 1971, the applicant was informed by his commander of his
intent to recommend a discharge for unfitness, his right to counsel, his
right to an administrative hearing by a board of officers, his right to
submit a statement in his own behalf and his right to be represented by
counsel at a hearing.  The commander also explained the applicant's rights
in conjunction with his recommendation and the effect of waiving those
rights.

11.  The applicant acknowledged that he understood if his discharge request
was approved, he could be deprived of many or all Army benefits, that he
could be ineligible for many or all benefits administered by the Department
of Veterans Affairs, and that he could be deprived of his rights and
benefits as a veteran under both Federal and State law.  He also
acknowledged that he understood he may expect to encounter substantial
prejudice in civilian life by reason of an undesirable discharge.

12.  On 20 August 1971, the separation authority approved the applicant's
commander's recommendation and directed that the applicant be issued an
Undesirable Discharge Certificate.  He was reduced in rank from private E-2
to private E-1.  On 17 September 1971, the applicant was discharged.  The
DD Form 214 (Armed Forces of the United States Report of Transfer or
Discharge) he was issued shows he completed a total of 1 year, 11 months
and 9 days of creditable active military service.

13.  Item 44 (Time Lost) of the applicant's DA Form 20 (Enlisted
Qualification Record) shows the applicant had accrued 66 days of time lost.

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

15.  Army Regulation 635-212, in effect at the time, set forth the basic
authority for the elimination of enlisted personnel.  Paragraph 6 of the
regulation provided, in pertinent part, that an individual was subject to
separation for unfitness because of frequent incidents of a discreditable
nature with civil or military authorities; sexual perversion including but
not limited to lewd and lascivious acts, indecent exposure, indecent acts
with or assault on a child; drug addiction or the unauthorized use or
possession of habit-forming drugs or marijuana; an established pattern of
shirking; and an established pattern of dishonorable failure to pay just
debts or to contribute adequate support to dependents (including failure to
comply with orders, decrees or judgments).  When separation for unfitness
was warranted an undesirable discharge was normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his undesirable discharge be upgraded to an
honorable discharge.

2.  The evidence shows the applicant accepted NJP for being AWOL; violation
of a general regulation; willful disobedience of a lawful order of a
commissioned officer; disorderly conduct; communicating a threat; and
possession of habit-forming narcotic drugs (barbiturates).

3.  The available evidence also shows the applicant was AWOL during the
periods 31 January to 25 February 1970; 16 to 26 April 1971; 3 to 30 May
1971; and 8 to 9 August 1971.  As such, an undesirable discharge was
equitable and proper.

4.  The statements submitted by the applicant are well noted; however, his
post-service achievements are not sufficient to warrant an upgrade of a
properly issued discharge.

5.  Based on this record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.

6.  The applicant's discharge was accomplished in compliance with
applicable regulations and there is no indication of procedural errors or
injustice that would tend to jeopardize his rights.  The evidence provides
sufficient basis for an undesirable discharge for unfitness.  Therefore, he
is not entitled to an honorable or a general discharge.

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

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 17 September 1971; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on  
16 September 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

___rtd___  ___lwr___  ____ded_  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.




                                  _________Richard T. Dunbar_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060005748                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061207                                |
|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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