RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 November 2006
      DOCKET NUMBER:  AR20060006051


      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:

|     |Mr. John Meixell                  |     |Chairperson          |
|     |Ms. Susan Powers                  |     |Member               |
|     |Mr. Dennis Phillips               |     |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, in effect, reconsideration of an earlier
request that his undesirable discharge be upgraded to honorable.

2.  The applicant states, in effect, that he was denied the right to a fair
and impartial trial by court-martial in 1971 and in 1973.  He states that
the two officers convening his special court-martials were not authorized
court-martial convening authorities as prescribed by the Uniform Code of
Military Justice, as they were not in command of a named unit.  Therefore,
the two special court-martials were rendered without any jurisdiction and
the findings of guilty and punishments imposed and the subsequent
undesirable discharge were null and void.

3.  The applicant also states, in effect, that he was also denied the right
to reasonable effective assistance of counsel during the two court-
martials.  He contends that counsel failed to develop particulars, make
objections, or move for dismissal regarding the court-martial convening
order or the court-martial legality.

4.  The applicant provides no evidence in support of his request for
reconsideration.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR20050010500, on 19 January 2006.

2.  The applicant’s contentions are new arguments which will be considered
by the Board.

3.  The applicant enlisted on 29 September 1967 for a period of 3 years.
He trained as a military policeman.  On 14 January 1970, he was honorably
discharged for immediate reenlistment.  He reenlisted on 15 January 1970
for a period of 4 years.

4.  On 17 September 1970, nonjudicial punishment was imposed against the
applicant for failure to repair.  His punishment consisted of a reduction
to E-2.

5.  On 23 December 1971, in accordance with his plea, the applicant was
convicted by a special court-martial of being absent without leave (AWOL)
from
2 September 1971 to 22 October 1971.  He was sentenced to be confined for

5 months, to forfeit $80 for 5 months, and to be reduced to E-1.

6.  On 21 September 1973, in accordance with his pleas, the applicant was
convicted by a special court-martial of two specifications of AWOL (from 14
May 1973 to 15 June 1973 and from 25 June 1973 to 27 August 1973).  He was
sentenced to be confined for 4 months and to forfeit $150 for 4 months.

7.  On 6 November 1973, the applicant’s unit commander initiated action to
separate him under the provisions of Army Regulation 635-200, chapter 13,
for unfitness due to frequent incidents of a discreditable nature with
civil or military authorities.

8.  On 8 November 1973, the applicant consulted with counsel and requested
consideration of his case before a board of officers and to be represented
by military counsel.

9.  On 5 December 1973, a board of officers convened to determine whether
the applicant should be discharged from the service.  The board found that
the applicant was undesirable for further retention in the military service
and recommended that he be discharged from the service because of unfitness
with the issuance of an undesirable discharge.  On 18 January 1974, the
separation authority approved the recommendation for separation and
directed the issuance of an undesirable discharge.

10.  Accordingly, the applicant was discharged on 8 February 1974 with an
undesirable discharge under the provisions of Army Regulation 635-200,
chapter 13, paragraph 13-5a(1) for unfitness due to frequent incidents of a
discreditable nature with civil or military authorities.  He had served a
total of 5 years, 1 month, and 29 days of total active service with 435
days of lost time due to AWOL and confinement.

11.  On 19 June 1979, the Army Discharge Review Board (ADRB) denied the
applicant’s request for a discharge upgrade.

12.  Army Regulation 635-200, in effect at the time, set forth the basic
authority for separation of enlisted personnel for unfitness or
unsuitability.  Chapter 13, paragraph 13-5a(1), provided for discharge due
to unfitness because of frequent incidents of a discreditable nature with
civil or military authorities.

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.  Whenever there is doubt, it is to be
resolved in favor of the individual.

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.

15.  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 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 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.

16.  Title 10, U.S. Code, Section 1552, as amended, precludes any action by
this Board which would disturb the finality of a court-martial conviction.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were noted, but are without factual basis.
The court-martial orders in his cases reflect the courts-martial were
convened by commanders having the requisite authority.

2.  The applicant’s record of service included one nonjudicial punishment,
two special court-martial convictions, and 435 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 an honorable discharge or general discharge.

3.  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.

4.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

JM_____  __SP____  __DP____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 to amend the decision of
the ABCMR set forth in Docket Number AR20050010500, dated 19 January 2006.




                                  ____John Meixell______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060006051                           |
|SUFFIX                  |                                        |
|RECON                   |20060119                                |
|DATE BOARDED            |20061128                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19740208                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 13                   |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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