RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      3 April 2007
      DOCKET NUMBER:  AR20060009534


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mr. Luis Almodova                 |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Ms. Susan A. Powers               |     |Member               |
|     |Mr. Qawiy A. Sabree               |     |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 two applications to the Board, in effect,
that his undesirable discharge be upgraded to a general (under honorable)
discharge.

2.  The applicant states, in effect, that at the time of his discharge from
Vietnam he was heavily influenced by drugs.  His judgment was extremely
impaired.

3.  He adds that he has been drug-free for 27-years and has done well.  He
offers his apology for his improper service to his country.

4.  The applicant provides no additional documentation in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice that
occurred on 6 February 1970.  The applications submitted in this case are
dated 15 June and 7 July 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 limitation 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 evidence shows the applicant enlisted in the Regular Army on
26 September 1967.  He successfully completed basic combat training and
his advanced individual training at Fort Leonard Wood, Missouri.  On
completion of his advanced training, he was awarded the military
occupational specialty 94B, Cook.

4.  On 16 August 1968, the applicant received nonjudicial punishment under
the provisions of Article 15, of the Uniform Code of Military Justice
(UCMJ), for absenting himself without proper authority on 15 August 1968
and remaining so absent until 16 August 1968 and for knowingly staying off
post without his commanding officer's permission and in violation of 2nd
Infantry Division regulation.  The imposed punishment was a forfeiture of
$24.00, restriction to the company area for 14 days and to perform extra
duties for 7 days.  The applicant did not appeal the punishment.

5.  On 9 July 1969, the applicant received a special court-martial.  He was
found guilty of absenting himself from his unit on 10 October 1968 and
remaining absent from his unit until 17 June 1969.  The applicant was
sentenced to be confined at hard labor for six months and to forfeit $76.00
per month for six months.  The sentence was adjudged on 9 July 1969 and was
approved on 30 July 1969.

6.  On 15 August 1969, the unexecuted portion of the approved sentence to
confinement at hard labor for six months was suspended, effective 21 August
1969, until 8 December 1969.

7.  On 18 December 1969, charges were preferred against the applicant for
his failing to obey a lawfully given order by his first sergeant, on 15
December 1969.

8.  The applicant underwent a neuropsychiatric examination on 26 December
1969.  The applicant was found to meet retention standard of Army
Regulation (AR) 40-501 and there was no psychiatric disease or defect which
warranted his disposition through medical channels.  He was found to be
mentally responsible, able to distinguish right from wrong and adhere to
the right, and had the mental capacity to understand and participate in
board proceedings.  The examining physician, the division psychiatrist,
25th Infantry Division, recommended he be administratively separated from
the military.

9.  On 12 January 1970, the applicant underwent a separation physical
examination.  He was found medically qualified for separation.

10.  On 12 January 1970, the applicant voluntarily submitted a request for
discharge for the good of the service.  In his request the applicant stated
he understood he could request discharge for the good of the service
because charges had been filed against him under the UCMJ, which could
authorize the imposition of a bad conduct or dishonorable discharge.  He
added that he was making his request of his own free will and had not been
subjected to coercion whatsoever by any person.

11.  The applicant stated that he understood that if his request were
accepted, he could be discharged under other than honorable conditions and
furnished an undesirable discharge certificate.  He stated he understood
that as the result of issuance of such a discharge could deprive him of
many or all Army benefits that he might be eligible for, that he might be
ineligible for many or all benefits administered by the Veterans
Administration [now the Department of Veterans
Affairs], and that he might be deprived of his rights and benefits as a
veteran under both Federal and state law.  He also understood that he could
expect to encounter substantial prejudice in civilian life because of an
undesirable discharge.

12.  The applicant was advised that he could submit a statement in his own
behalf, which would accompany his request for discharge.  The applicant
opted not to submit a statement in his own behalf.

13.  Prior to completing his request for discharge for the good of the
service, the applicant was afforded the opportunity to consult with
counsel.  He consulted with counsel on 12 January 1970 and was fully
advised of the nature of his rights under the UCMJ.  Having been furnished
legal advice, he acknowledged that the decision to submit a request for
discharge for the good of the service was his own.

14.  The applicant's chain of command unanimously recommended approval of
his request for discharge for the good of the service.

15.  On 17 January 1970, the applicant's commander recommended he be barred
from reenlistment.  The applicant's commander stated the applicant had
clearly demonstrated he was unfit for further military service.  He had
been a constant disciplinary problem in that he required constant close
supervision even in the performance of the most simple of assignments.  His
military appearance, maintenance of clothing and equipment and military
bearing were far below that expected of a Soldier in his unit.  He had
received non-judicial punishment for being absent without leave (AWOL) from
his unit and had received a special court martial also for being AWOL.  The
applicant's conduct and efficiency were rated as "unsatisfactory."

16.  On the same date, the applicant acknowledged the recommendation he be
barred from reenlistment.  He stated he did not wish to make a statement in
his own defense.  The recommendation for his bar to reenlistment was
submitted concurrently with the applicant's request for discharge for the
good of the service.

17.  On 26 January 1970, the approving authority, a brigadier general,
approved the applicant's request for discharge, for the good of the
service, under the provisions of AR 635-200, Chapter 10, and directed he be
furnished an undesirable discharge certificate.
18.  The applicant was discharged with an undesirable discharge, with his
service characterized as under other than honorable conditions, in the rank
and pay grade of Private, E-1, on 6 February 1970, under the provisions of
AR 635-200, Chapter 10, for the good of the service.  In the processing of
this case, it was determined the reason and authority for the applicant's
separation was incorrectly applied to his DD Form 214, Armed Forces of the
United States Report of Transfer or Discharge. The reason and authority was
entered as "AR 636-212 SPN [Separation Program Number] 246 (Disch)."

19.  On the date of his discharge, the applicant had completed 1 year, 1
month, and 5 days creditable active military service, with 456 days lost
due to AWOL and confinement.

20.  Item 31 (Foreign Service), of the applicant's DA Form 20, Enlisted
Qualification Record, shows he served overseas in Korea and in Vietnam.

21.  Item 33 (Appointments and Reductions), of the applicant's DA Form 20,
shows he was promoted to the rank and pay grade, Private First Class/E-3,
on 18 March 1968.  This would be the highest rank and pay grade the
applicant would attain while he served on active duty.  The record contains
no documented acts of valor, achievement, or service warranting special
recognition.

22.  The applicant applied to the Army Discharge Review Board (ADRB) for an
upgrade of his discharge within its 15-year statute of limitations.  On 24
March 1972, he was notified that the ADRB, after careful consideration of
his military record and all other available evidence, had determined that
he had been properly discharged.  His request for an upgrade of his
discharge was denied.

23.  AR 635-200 sets forth the basic authority for the separation of
enlisted personnel.  Chapter 10 of that regulation provides, in pertinent
part, that a member who has committed an offense or offenses for which the
authorized punishment includes a punitive discharge may submit, at any time
after the charges have been preferred, a request for discharge for the good
of the service, in lieu of trial by court-martial.  A discharge under other
than honorable conditions is normally considered appropriate, but the
separation authority may direct a general discharge or an honorable
discharge if such is merited by the Soldier's overall record and if the
Soldier's record is so meritorious that any other characterization clearly
would be improper.
24.  AR 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 separation specifically allows such characterization.

25.  AR 635-5-1, in effect at the time of the applicant's discharge, shows
the SPN 246 was applied to DD Forms 214 when the reason for an individual's
discharge was, "For the Good of the Service."

26.  In his application, the applicant stated that he was heavily
influenced by drugs and his judgment was extremely impaired.  However,
there is only one recorded incident that was drug-related in the
applicant's service record.  When the incident occurred, his chain of
command, it appears, reacted quickly in getting him appropriate medical
treatment.

27.  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 (AR 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 allegation that at the time of his discharge from
Vietnam he was heavily influenced by drugs and that his judgment was
extremely impaired can not be confirmed.

2.  The evidence of record shows that the applicant was identified by
command as a constant disciplinary problem in that he required constant
close supervision, even in performing the simplest of assignments.  His
military bearing, appearance, and maintenance of clothing and equipment
were far below that expected of a Soldier in his unit.  He had received
non-judicial punishment for being AWOL
from his unit and had received a special court martial also for being
AWOL.  The applicant's commander stated the applicant had clearly
demonstrated he was unfit for further military service.

3.  Notwithstanding the above, the evidence further shows the applicant was
charged with a violation of the UCMJ for which a bad conduct or
dishonorable discharge could be imposed.  Rather than face court-martial,
the applicant opted to submit a request for discharge, in lieu of
discharge, for the good of the service. The applicant's discharge was
approved and he was discharged accordingly.

4.  The evidence shows the applicant was discharged under the provisions of
AR 635-200, Chapter 10, for the good of the service.  In connection with
such a discharge, the applicant was charged with the commission of an
offense punishable under the UCMJ with a punitive discharge.  Procedurally,
the applicant was required to consult with defense counsel, and to
voluntarily, and in writing, request separation from the Army in lieu of
trial by court-martial.  In doing so, the applicant admitted guilt to the
stipulated offenses under the UCMJ.

5.  The evidence shows that all requirements of law and regulation were met
and the rights of the applicant were fully protected throughout the
separation process. The characterization of service for this type of
discharge is normally under other than honorable conditions and the
evidence shows that the applicant was aware of that prior to requesting
discharge.  It is believed that the reason for discharge and the
characterization of service were both proper and equitable.

6.  In the processing of this case, it was identified the reason and
authority for the applicant's separation was incorrectly applied to his
DD Form 214.  The authority and SPN shown, "AR 636-212 SPN 246 (Disch),"
are neither correct nor commensurate with the approval that was signed by
the general court-martial convening authority.  The authority should be,
"AR 635-200, Chapter 10 (SPN: 246)"; however, the applicant has not
request a correction of this data item.

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

8.  In view of the foregoing, there is no basis for granting the
applicant's request for an upgrade of his under other than honorable
conditions discharge.
9.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 24 May 1972.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 23 May 1975.  He failed to 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

___SP___  __JI____  ___QAS _  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.




                                  _____John Infante_______
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20060009534                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070403                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19700206                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 10                  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |144.7100                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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