RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      24 April 2007
      DOCKET NUMBER:  AR20060013114


      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. James E. Vick                 |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Mr. Gerald J. Purcell             |     |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 undesirable discharge be
upgraded to honorable.

2.  The applicant states, in effect, that his captain slapped the cap off
his head so he slugged him in the jaw.  He adds that the captain was
prejudiced and he should never have knocked his cap off his head.  He was
wrong for doing that.

3.  In support of his request, the applicant provides a copy of his DD Form
214, Armed Forces of the United States Report of Transfer or Discharge, and
three character witness letters.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice that
occurred on 5 January 1968, the date of his discharge.  The application
submitted in this case is dated 7 September 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 was inducted into the Army of the
United States on 20 July 1966.  He successfully completed basic combat
training at Fort Polk, Louisiana, and his advanced individual training at
Fort Carson, Colorado.  On completion of his advanced training, he was
awarded the military occupational specialty 11E, Armor Crewman.

4.  The applicant was advanced to pay grade E-2 on 20 November 1966.  This
is the highest pay grade he would hold while he served on active duty.

5.  On 2 December 1966, the applicant received a Special Court-martial.
He was found guilty of absenting himself without proper authority [being
AWOL] from his unit on 7 October and remaining so absent until 16 October
1966.  The applicant was sentenced to confinement at hard labor for 3
months.  The sentence was
approved and ordered executed, but the execution of that portion
adjudging confinement at hard labor was suspended until 1 March 1967, at
which time, unless the suspension was sooner vacated, the suspended
portion of the sentence would be remitted without further action.

6.  On 20 February 1967, the applicant was reassigned to Germany.  While
in Germany he was assigned to Company B, Headquarters Company, and Company
C, 2nd Battalion, 68th Armor, 8th Infantry Division.  Statements submitted
by his leadership state he was reassigned from company to company for
rehabilitation purposes.

7.  On 13 March 1967, the applicant received nonjudicial punishment under
the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ)
for being AWOL from his unit from 1815 hours, 11 March 1967, until 2300
hours, 11 March 1967, and for resisting being apprehended by two military
police.  The imposed punishment was a forfeiture of $14.00, restriction to
the company area for 14 days, and to perform extra duties for 14 days.  The
applicant did not appeal the punishment.

8.  On 4 May 1967, the applicant received a Special Court-martial.  He
was found guilty of failing to obey the lawful order of his superior
commissioned officer on 20 April 1967, of failing to obey the lawful
order of his superior noncommissioned officer on 22 April 1967, and
breaking restriction on 22 April 1967.  The applicant was sentenced to
confinement at hard labor for 6 months, to be reduced to pay grade E-1,
and to forfeit $64.00 per month, for one month.  The sentence was
adjudged on 8 May 1967 and approved on 10 May 1967, but the execution of
that portion of the sentence adjudging confinement at hard labor was
suspended for 6 months, at which time, unless the suspension was sooner
vacated, the suspended portion of the sentence would be remitted without
further action.

9.  On 11 July 1967, the applicant received a Special Court-martial.  He
was found guilty of striking his superior noncommissioned officer on the
face with his fist on 24 June 1967, of failing to obey a lawfully given
order of his superior noncommissioned officer on 24 June 1967, and of
engaging in a fist fight with another superior noncommissioned officer on 1
July 1967.  The applicant was sentenced to confinement at hard labor for 6
months and to forfeit $60.00 per month for six months.  The sentence was
adjudged on 11 July 1967 and approved on 20 July 1967.  The applicant was
to be confined in the US Army Europe and North Baden District Stockade.
10.  The court martial was reviewed on 14 August 1967, by the Office of the
Staff Judge Advocate, Headquarters, 8th Infantry Division, pursuant to
paragraph 94a, Manual for Courts Martial, and was found to be legally
sufficient to support the findings and the sentence.

11.  On 3 August 1967, that portion of the sentence which had been approved
on 20 July 1967, was suspended for 5 months, at which time unless the
suspension was sooner vacated, the unexecuted portion of the sentence would
be remitted without further action.

12.  On 13 September 1967, the unexecuted portion of the sentence to
confinement at hard labor was vacated.  The unexecuted portion of the
sentence to confinement at hard labor was ordered duly executed.

13.  On 28 September 1967, the applicant underwent a separation physical
examination.  A Standard Form (SF) 89, Report of Medical History, and a SF
88, Report of Medical Examination, were prepared to document the results of
the medical examination.  He was found medically qualified for retention or
for separation.

14.  The applicant underwent a psychiatric evaluation on 7 October 1967.
The applicant was diagnosed to have an aggressive personality.  The
evaluating psychiatrist, an Army medical corps officer, found him to be
alert, oriented, and showed no evidence of organic brain disease or
psychosis.  His mood and affect appeared to fluctuate appropriately.  His
memory was in tact and intellectual functioning appeared to be in the
normal range.  The applicant was cleared for any action deemed appropriate
by command.

15.  On 18 October 1967, the unexecuted portion of the applicant's sentence
to confinement at hard labor for 5 months was remitted.

16.  On 20 October 1967, the applicant received a Special Court-martial.
He was found guilty of being disrespectful in language towards his superior
noncommissioned officer on 19 October 1967, of failing to obey a lawful
order given by his superior noncommissioned officer on 19 October 1967, of
being disrespectful towards his superior commissioned officer on 19 October
1967, of communicating a threat to a specialist five on 19 October 1967,
and orally communicating obscene language to a female German national on 19
October 1967.  The sentence was adjudged on 20 October 1967 and was
approved on
9 November 1967.  The applicant was sentenced to confinement at hard labor
for 6 months, and to forfeit $60.00 per month, for 6 months.  The applicant
was to be confined in the US Army Europe and North Baden District Stockade.

17.  On about 16 November 1967, the applicant's commander recommended
that he appear before a board of officers for the purpose of determining
whether he should be discharged before the expiration of his term of
service for unfitness. The recommendation was made due to the applicant's
habitual misconduct and traits of character manifested by an utter
disregard for the military society and for repeated commission of petty
offenses and habitual shirking.

18.  To support his recommendation, the commander submitted six statements
by the applicant's leaders and supervisors, including his own, describing
the applicant's actions, his attitude towards others, and his attitude
towards his duties.

19.  The applicant acknowledged the contemplated action and the reasons
therefore on 16 November 1967.  He waived consideration of his case by a
board of officers and waived a personal appearance before a board of
officers.  He was provided an opportunity to submit a statement in his own
behalf and did so on the same date.  In his statement, the applicant
stated, in part, in effect, "I don't have to very much to say because I am
now interested in getting home.  I have had four courts-martial and each of
them was for something I don't think was really serious.  I think if I had
been under some officers and NCOs [noncommissioned officers] who wasn't
(sic) so damned gung ho, I could have been a good Soldier.  I am not
blaming the world for my problems, but I am blaming some of the people of
the world for my being in the Army.  I am willing to give up Army life, but
I don't feel as if I should get an unfit discharge.  But if so, I shall
take it and have it."

20.  The applicant's chain of command unanimously recommended approval of
the recommendation and on 12 December 1967, the approving authority, a
major general, approved his separation under the provisions of AR 635-212
and directed he be furnished an undesirable discharge.

21.  On 20 December 1967, the unexecuted portion of the applicant's
sentence to confinement at hard labor was remitted.

22.  The applicant was discharged with an undesirable discharge, in the
rank and pay grade of Private, E-1, on 5 January 1968, under the provisions
of Army
Regulation (AR) 635-212.  A Separation Program Number 28B, Unfitness –
involved in frequent incidents of discreditable nature with civil or
military authorities, was applied to his DD Form 214.

23.  On the date of his discharge, the applicant had completed 1 year, 2
months, and 1 day creditable active military service, with 105 days lost
time due to AWOL and confinement.

24.  Item 44 (Time Lost Under Section 972, Title 10, United States Code and
Subsequent to Normal ETS [Expiration Term of Service]), of the applicant's
DA Form 20, Enlisted Qualification Record, and Item 26a (Non-Pay Periods
Time Lost), of the applicant's DD Form 214, show the following lost time:
7 October 1966 / 15 October 1966 / 9 days / AWOL (absent without leave) //
16 October 1966 / 1 December 1966 / 47 days / Confinement // 2 December
1966 / 18 December 1966 / 17 days / Pre-Trial Confinement // 18 September
1967 / 19 October 1967 / 32 days / Confinement //, for a total of 105 days
lost time.

25.  The court martial sentence adjudged on 20 October 1967 and approved on
9 November 1967 was reviewed on 8 January 1968, by the Office of the Staff
Judge Advocate, Headquarters, 8th Infantry Division, pursuant to paragraph
94a, Manual for Courts Martial.  It was found to be legally sufficient to
support the findings and the sentence.

26.  There is no evidence that the applicant applied to the Army Discharge
Review Board (ADRB) for an upgrade of his discharge within its 15-year
statute of limitations.

27.  AR 635-212, in effect at the time, set forth the basic authority for
the separation of enlisted personnel.  Paragraph 6 of the regulation
provided, in pertinent part, that an individual was subject to separation
for unfitness because of frequent incidents of a discreditable nature with
civil or military authorities; sexual perversion including but not limited
to lewd and lascivious acts, indecent exposure, indecent acts with or
assault on a child; drug addiction or the unauthorized use or possession of
habit-forming drugs or marijuana; an established pattern of shirking; and
an established pattern of dishonorable failure to pay just debts or to
contribute adequate support to dependents (including failure to comply with
orders, decrees or judgments).  When separation for unfitness was warranted
an undesirable discharge was normally considered appropriate.
28.  AR 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, 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.

29.  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.

30.  In his application, the applicant stated he had retaliated against an
officer who had knocked his hat off his head.  Evidence of this incident
was not found in the applicant's record.

31.  The character witness statements written in support of the applicant
were considered.  Each letter attests to his good humor and tells about the
friendship that he extends the authors.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's allegation that his captain slapped the cap off his
head so he slugged him in the jaw, that his captain was prejudiced, and
that he should never have knocked his cap off his head, and he was wrong
for doing that was noted; however, there is no evidence this incident
occurred.

2.  The evidence does show the applicant had a history of disciplinary
problems which resulted in his transfer, from unit to unit, for
rehabilitation purposes, with no evidence of rehabilitation.  The evidence
shows he was appropriately punished.  His punishment included his spending
time in confinement, a reduction in pay grade, his being restricted to the
limits of his company area, his performing extra duties, his forfeiting
pay, and finally, his separation for unfitness.

3.  The overall quality of the applicant’s service was considered.  The
record contains no documentary evidence of acts of valor or achievement
which would
warrant special recognition and an upgrade of his undesirable discharge.
His service was determined not to be sufficiently meritorious to warrant an
upgrade of his discharge.

4.  There is no evidence, and the applicant provided none to show he
applied to the Army Discharge Review Board (ADRB) for an upgrade of his
discharge within its 15-year statute of limitations.

5.  The character reference letters written in support of the applicant
attest to his good humor and the friendship he extends to the authors of
the letters; however, these character reference letters are not
sufficiently mitigating to cause an upgrade of the type of discharge he
received.

6.  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 type of
discharge is an undesirable discharge. It is believed that the reason for
discharge and the characterization of service were both proper and
equitable.

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.  In view of the foregoing, there is no basis for
granting the applicant's request for an upgrade of his undesirable
discharge to honorable.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 5 January 1968; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 4 January 1971.  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

____JV__  __PM____  ___GP__  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. Vick______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060013114                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070424                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19680105                                |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |144.5000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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