RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 February 2007
      DOCKET NUMBER:  AR20060010319


      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. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Hubert O. Fry                 |     |Chairperson          |
|     |Mr. William F. Crain              |     |Member               |
|     |Mr. Dale E. DeBruler              |     |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, that his discharge be upgraded to an
honorable discharge.

2.  The applicant states, in effect, that he was a good Soldier who wanted
to serve his country.  He adds that in his eagerness to be in the real war
and not stateside he was viewed as “too willing.”  He believes that this is
what caused his issues with the military.  He was young and immature and
did not realize the value of a long term career.  He finally states, that
he as been an outstanding citizen since being discharged and he is
currently an Auxiliary Police in his town in New Jersey.

3.  The applicant provides no additional documents in support of this
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 18 February 1972, the date of his discharge
from active duty.  The application submitted in this case is dated 19 June
2006; however, was received on 25 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 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 record shows that he enlisted in the Regular Army on
26 February 1971, for a period of 2 years.  He completed the required
training and was awarded Military Occupational Specialty (MOS) 11B (Light
Weapons Infantryman).  The highest grade he attained was pay grade E-3.

4.  On 20 April 1971, the applicant accepted nonjudicial punishment (NJP)
for being absent without leave (AWOL) from 11 to 12 April 1971.  His
imposed punishment was a forfeiture of $33.60 pay, 14 days restriction, and
14 days extra duty.

5.  On 2 August 1971, the applicant accepted NJP for failure to go at the
prescribed time to his appointed place of duty.  His imposed punishment was
a forfeiture of $42.00 pay, 7 days restriction, and 7 days extra duty.

6.  On 20 August 1971, the applicant accepted NJP for sleeping while on
guard duty.  His imposed punishment was a reduction to pay grade E-2
(suspended for 60 days), 14 days restriction, and a forfeiture of $34.00
pay (suspended for
60 days).

7.  On 22 September 1971, the applicant accepted NJP for disobeying a
lawful regulation.  His imposed punishment was a reduction to pay grade E-
1, and a forfeiture of $25.00 pay.

8.  On 28 December 1971, the applicant was convicted by a Summary Court-
Martial of being AWOL from 2 to 3 December 1971, for failure to go at the
prescribed time to his appointed place of duty, and for disobeying a lawful
order.  He was sentenced to a forfeiture of $47.00 pay, 60 days
restriction, and confinement at hard labor for 30 days (suspended for 6
months).

9.  On 30 December 1971, the applicant was advised by the unit commander
that he was being recommended for discharge under the provisions of Army
Regulation 635-212, by reason of unfitness.  The applicant consulted with
legal counsel and after being advised of the basis for the contemplated
separation, its effects and the rights available to him, he waived his
right to consideration of his case by a board of officers, personal
appearance before a board of officers, and his right to counsel.  The
applicant did not submit a statement in his behalf.

10.  On 3 February 1972, the applicant was evaluated by a psychiatrist.
The applicant was found mentally responsible, able to distinguish right
from wrong and to adhere to the right, and had the mental capacity to
understand and participate in board proceedings.

11.  On 8 February 1972, a medical evaluation found the applicant
physically fit for retention or separation.

12.  On 11 February 1972, the separation authority directed the applicant’s
separation under the provisions of Army Regulation 635-212 for unfitness
and that he receive an Undesirable Discharge Certificate.  On 18 February
1972, the applicant was discharged accordingly.  The DD Form 214 (Armed
Forces of the United States Report of Transfer or Discharge) issued to him
at the time, confirms the applicant completed a total of 11 months and
23 days of creditable active military service.
13.  On 12 April 1977, the Army Discharge Review Board (ADRB) denied the
applicant’s request for an upgrade of his discharge within its 15-year
statute of limitations.

14.  Army Regulation 635-212, in effect at the time, set forth the basic
authority, established the policy, and prescribed the procedures for
separating members for unfitness.  An undesirable discharge was normally
considered appropriate for members separating under these provisions.

15.  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.

16.  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.

17.  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 Board 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 contentions that his discharge should be upgraded
because he was young and immature were carefully considered and found to be
insufficient evidence in supporting his request.  The applicant’s record
shows that he was 20 years of age at the time of the offenses.  There is no
evidence that indicates that he was any less mature than any other Soldier
of the same age who successfully completed military service.
2.  The applicant’s contentions regarding his good post-service conduct and
achievements were carefully considered.  The applicant’s good post-service
conduct is commendable, but is not so meritorious as to warrant an upgrade
of his discharge.

3.  After carefully evaluating the evidence of record in this case, it is
determined that the applicant’s discharge processing was conducted in
accordance with law and regulations applicable at the time and that the
character of his service is commensurate with his overall record of
military service.  The evidence of record confirms that the applicant’s
rights were fully protected throughout the separation process.

4.  The evidence of record also reveals that the applicant had an extensive
disciplinary history of military infractions that ultimately led to his
discharge.  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.  Therefore, given the circumstances in this
case, there is insufficient evidence to grant his request.

5.  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 exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 12 April 1977.  As
a result, the time for the applicant to file a request for correction of
any error or injustice expired on 12 April 1980.  However, 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

___HOF__  ___WFC_  ___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.




                                       ___Hubert O. Fry______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/02/13                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |MR. CHUN                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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