RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 January 2007
      DOCKET NUMBER:  AR20060007494


      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. Jeffrey Redmann               |     |Chairperson          |
|     |Mr. Rodney Barber                 |     |Member               |
|     |Mr. David Tucker                  |     |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 led to believe there is a recent
legislation to help Vietnam era veterans to upgrade their discharges.

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 23 June 1972.  The application submitted in this case is dated
24 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 enlistment contract shows he enlisted on 24 October
1969 for a period of 3 years.  He successfully completed basic combat
training and advanced individual training in military occupational
specialty 63B (wheel vehicle mechanic).  His DA Form 20 (Enlisted
Qualification Record) shows he served in Germany and Alaska.

4.  On 27 January 1970, nonjudicial punishment was imposed against the
applicant for going absent without leave (AWOL) from 2 February 1970 to
6 February 1970.  His punishment consisted of an oral reprimand, a
forfeiture of pay, extra duty, and restriction.

5.  On 18 December 1970, nonjudicial punishment was imposed against the
applicant for failing to maintain a clean rifle.  His punishment consisted
of extra duty (suspended) and restriction (suspended).  On 8 January 1971,
the suspended portion of the punishment was vacated.

6.  On 21 January 1971, nonjudicial punishment was imposed against the
applicant for two specifications of failure to repair.  His punishment
consisted of a reduction to E-1, extra duty, and restriction.

7.  A letter, dated 20 May 1972, from the applicant’s commanding officer
states the applicant also received nonjudicial punishment on 1 March 1972
for being AWOL and his punishment consisted of a reduction to E-1,
restriction, extra duty. This letter states that the applicant received
nonjudicial punishment on 11 April 1972 for failing to obey a lawful order
and his punishment consisted of a forfeiture of pay, extra duty, and
restriction.

8.  On 20 May 1972, the applicant’s unit commander initiated action to
separate him under the provisions of Army Regulation 635-212 for unfitness
due to frequent incidents of a discreditable nature with civil or military
authorities.

9.  On 20 May 1972, after consulting with counsel, the applicant waived
consideration of his case by a board of officers and representation by
counsel.  He also elected not to submit a statement on his own behalf.

10.  On 13 June 1972, the separation authority approved the recommendation
for separation and directed that the applicant be furnished an undesirable
discharge.
11.  On 23 June 1972, the applicant was discharged with an undesirable
discharge 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 2 years, 7 months, and 19 days of creditable
active service with 12 days lost due to AWOL.  His DD Form 214 states that
he was separated from the service on temporary records and a Soldier’s
affidavit.

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(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.

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.  Although the applicant contends that he was led to believe there is a
recent legislation to help Vietnam era veterans to upgrade their
discharges, he does not provide any evidence to support his contention.

2.  Since the applicant’s record of service included five nonjudicial
punishments and 12 days of lost time, his record of service was not
satisfactory.  Therefore, the applicant's record of service is
insufficiently meritorious to warrant a 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.  He had an opportunity to
submit a statement in which he could have voiced his concerns and he failed
to do so.

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

5.  Records show the applicant should have discovered the alleged injustice
now under consideration on 23 June 1972; therefore, the time for the
applicant to file a request for correction of any injustice expired on 22
June 1975.  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

JR_____  _RB_____  _DT_____  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.




                                  ___Jeffrey Redmann____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060007494                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070118                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19720623                                |
|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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