RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 December 2006
      DOCKET NUMBER:  AR20060009201


      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. Peter Fisher                  |     |Chairperson          |
|     |Mr. Thomas Ray                    |     |Member               |
|     |Mr. Jeffrey Redmann               |     |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, in effect, that he did not know President Carter
granted pardons for draft dodgers which made them eligible for discharge
upgrades.  He contends that he had 18 months of good duty until he went
home on leave from Germany and discovered that his six younger brothers
were starving.  He states that his father was crippled, that he got his
girlfriend pregnant and had to get married, and that he kept putting off
his return.  He believes that since he was absent without leave (AWOL) and
not a draft dodger he deserves the same or better consideration than draft
dodgers because he did his time in the brig.

3.  The applicant provides nine character reference letters; and a letter,
dated
14 June 2006, from a Member of Congress.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 21 July 1965.  The application submitted in this case is dated
8 June 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 enlisted on 29 November 1962 for a period of 3 years.  He
trained as a Hawk missile fire control crewman.

4.  On 1 July 1965, in accordance with his pleas, the applicant was
convicted by a special court-martial of two specifications of being AWOL
(from 20 July 1964 to 12 October 1964 and from 19 October 1964 to 4 June
1965).  He was sentenced to be confined at hard labor for 6 months, to
forfeit $55 pay per month for 6 months, and to be reduced to E-1.  On 7
July 1965, the convening authority approved the sentence.


5.  On 12 July 1965, the applicant’s unit commander initiated a
recommendation to discharge him from the service under the provisions of
Army Regulation 635-208 for unfitness due to frequent incidents of a
discreditable nature with civil or military authorities.

6.  On 12 July 1965, after consulting with counsel, the applicant declined
counsel, waived consideration of his case by a board of officers, and
elected not to make a statement in his own behalf.  He also indicated that
he understood he might be discharged under other than honorable conditions,
that he might be ineligible for many or all benefits as a veteran under
both Federal and State law, and that he might expect to encounter
substantial prejudice in civilian life.

7.  On 15 July 1965, the separation authority approved the recommendation
for separation and directed that he be issued an undesirable discharge.

8.  On 21 July 1965, the applicant was discharged with an undesirable
discharge under the provisions of Army Regulation 635-208 for unfitness due
to frequent involvement in incidents of a discreditable nature with civil
or military authorities.  He had served 1 year, 7 months, and 29 days of
creditable active service with 359 days of lost time due to AWOL and
confinement.

9.  The applicant provided nine character reference letters.  They all
attest that the applicant has been law abiding, decent, respectable, and of
good moral character.

10.  On 11 November 1974, the Army Discharge Review Board (ADRB) denied the
applicant’s request for a discharge upgrade.

11.  Army Regulation 635-208, in effect at the time, set forth the basic
authority for the separation of enlisted personnel for unfitness.  Section
II of the regulation provided, in pertinent part, for the separation of
personnel for frequent incidents of a discreditable nature with civil or
military authorities.  An undesirable discharge was normally considered
appropriate.

12.  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.

13.  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.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that family problems caused him to go AWOL does
not provide a basis for upgrading his 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 prior to going
AWOL.

2.  The character reference letters submitted on behalf of the applicant
fail to show that his discharge was unjust and should be upgraded.

3.  Since the applicant’s record of service included one special court-
martial conviction and 359 days of lost time, 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.

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.

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

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 11 November 1974.  As a
result, the time for the applicant to file a request for correction of any
injustice to this Board expired on 10 November 1977.  The applicant did not
file within the 3-year statute of limitations; however, based on the
available evidence 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

PF______  __TR____  _JR____  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.




                                  __Peter Fisher________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060009201                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061221                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19650721                                |
|DISCHARGE AUTHORITY     |635-208                                 |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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