RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 February 2007
      DOCKET NUMBER:  AR20060011088


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Jerome L. Pionk               |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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, affirmation of the 1977 Army
Discharge Review Board (ADRB) decision to upgrade his undesirable discharge
(UD) to a general, under honorable conditions discharge (GD) under the
provisions of the Special Discharge Review Program (SDRP).

2.  The applicant states, in effect, that the decision of the ADRB to
upgrade his discharge under the provisions of the SDRP should be affirmed
based on his impoverished background, his young age, and immaturity during
the time he served.

3.  The applicant provides the Separation Document (DD Form 214) and
General Discharge Certificate issued as a result of the SDRB action, and a
Department of Veterans Affairs Letter in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 23 October 1978, the date the Army Discharge Review Board
(ADRB) voted not to affirm the 1977 upgrade action of the SDRB.  The
application submitted in this case is dated 28 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 and
entered active duty on 13 January 1966.  He successfully completed basic
combat training at Fort Bliss, Texas on 19 March 1966, and was assigned to
Fort Dix, New Jersey, to attend advanced individual training (AIT).

4.  The applicant's Enlisted Qualification Record (DA Form 20) shows that
he never completed AIT.  His record documents no acts of valor, significant
achievement, or service warranting special recognition.  His disciplinary
history includes two Special Court-Martial (SPCM) convictions.

5.  On 14 July 1966, a SPCM found the applicant guilty of violating Article
86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or
about
17 April 1966 through on or about 30 June 1966.  The resulting sentence was
confinement at hard labor for 3 months and reduction to private/E-1 (PV1).


6.  On 12 December 1968, a SPCM found the applicant guilty of three
specifications of violating Article 86 of the UCMJ by being AWOL during the
following three periods:  13 March 1968 through 22 April 1968; 6 May 1968
through 15 July 1968; and 19 August 1968 through 3 December 1968.  The
resultant sentence was confinement at hard labor for 6 months and
forfeiture of $41.00 per month for 6 months.

7.  The applicant's record also shows that between 3 April 1966 and 2 March
1969, the applicant accrued 980 days of time lost due to AWOL and
confinement. His record does not include a separation packet containing the
specific facts and circumstance surrounding his separation processing.

8.  The applicant's record does contain a DD Form 214 that shows the
applicant was discharged on 14 April 1969, under the provisions of Army
Regulation
635-212, by reason of Unfitness (frequent involvement in incidents of a
discreditable nature with civil or military authorities) and received an
UD.  The
DD Form 214 confirms that he completed a total of 6 months and 23 days of
creditable active military service, and accrued 980 days of time lost due
to AWOL and confinement.

9.  On 8 June 1977, the applicant’s discharge was upgraded by the ADRB
under the criteria of the SDRP.  This upgrade action was based on his age,
general aptitude, length of service at the time of discharge, education
level at time of discharge, entrance into service from a deprived
background, and possible personal problems that could have contributed to
the acts that led to his discharge.

10.  On 8 September 1978, the applicant’s case was reconsidered by the ADRB
using the uniform standards established in Department of Defense Directive
1332-28.  The ADRB concluded that the applicant’s GD issued under the
provisions of the SDRP did not warrant affirmation.  This determination was
made based on his overall record of service.  The ADRB proceedings informed
the applicant that while this decision did not change the discharge he now
had, it may impact his ability to acquire VA benefits.

11.  The Department of Defense (DOD) SDRP was directed in a memorandum from
the Secretary of Defense in 1977.  The SDRP stipulated that all former
service members who received UD’s or GD’s during the period 4 August 1964
through 28 March 1973, were eligible for review under the SDRP.  It further
indicated that individual’s who received an UD during the RVN era would
have their discharges upgraded if they met one of the following criteria:
wounded in combat in the RVN; received a military decoration, other than a
service medal; successfully completed an assignment in Southeast (SE) Asia
or in the Western Pacific in support of operations in SE Asia; completed
alternate service or was excused from completion of alternate service under
the clemency program instituted in 1974; or received an honorable discharge
(HD) from a previous tour of military service.

12.  The SDRP also provided secondary criteria that allowed the ADRB to
upgrade a discharge if the board believed such upgrading was appropriate
based on all the circumstances of a particular case, and on the quality of
civilian record made since discharge.  Factors to be considered included:
age, general aptitude, and length of service at time of discharge;
education level at time of discharge; entered service from a deprived
background; possible personal distress which could have contributed to the
acts that led to discharge; entered military with waiver of normally
applicable standards; actions that led to discharge alleged at the time to
have been motivated by conscience; was discharged for abuse of drugs or
alcohol and, if so, any contributing or extenuating circumstances; and
record of good citizenship since discharge.

13.  On 8 October 1977, Public Law 95-126 added the provision that 180 days
of continuous absence, if it was used as the basis for an under other than
honorable conditions (UOTHC) discharge, to that list of reasons for
discharge which acted as a specific bar to eligibility for benefits
administered by the Department of Veterans Affairs (VA).  The law further
required that uniform discharge review standards be published that were
applicable to all persons administratively discharged or released from
active duty under other than honorable conditions.  It further required
that discharges upgraded under the automatic criteria established under the
SDRP be reconsidered under the newly established uniform discharge review
standards.  On 29 March 1978, these newly established uniform discharge
review standards were published in
DOD Directive Number 1332-28.




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 the 1977 upgrade of his discharge under the
SDRP should be affirmed based on the original reasons cited by the ADRB was
carefully considered.  However, there is insufficient evidence to support
this claim.

2.  The evidence of record confirms that the applicant was separated with
an UD, by reason of unfitness, based on his frequent involvement in
incidents of a discreditable nature with civil or military authorities.
This UD was upgraded by the ADRB based on a mandate contained in the
established SDRP criteria in effect at the time, based on his age, general
aptitude, length of service at the time of discharge, education level at
time of discharge, entrance into service from a deprived background, and
possible personal problems that could have contributed to the acts that led
to his discharge.

3.  However, the applicant's record also verifies that this GD upgrade
action was reconsidered by the ADRB using uniform discharge review
standards, as required by Public Law 95-126.  This reconsideration action
resulted in a determination that the GD issued by the ADRB under the SDRP
criteria did not warrant affirmation based on the applicant’s overall
record of service and his extensive disciplinary history.

4.  The evidence of record also confirms that the discharge review process
followed in this case was accomplished in accordance with existing law and
regulations in effect at the time, and it finds no error or injustice
related to these actions.  In addition, the issues raised by the applicant,
which were the basis for the original upgrade action under the SDRP are not
sufficiently mitigating to support affirmation of the upgrade under uniform
discharge review standards.

5.  Lacking evidence to the contrary, it is concluded that all requirements
of law and regulation were met and the rights of the applicant were fully
protected throughout the separation process, and that the UD he received
accurately reflected his overall record of service at the time it was
issued.  It is further found
that the 1978 determination of the ADRB that the GD issued to the applicant
under the provisions of the SDRP did not warrant affirmation given his
extensive disciplinary history and record of misconduct was proper and
equitable.

6.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, 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.

7.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 8 September 1978.
Therefore, the time for him to file a request for correction of any error
or injustice to this Board expired on 7 September 1981.  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

___JEA _  __JLP___  ___EEM _  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.




                                  _____James E. Anderholm __
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060011088                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/02/06                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1969/04/14                              |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  191  |110.0200                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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