RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 April 2007
      DOCKET NUMBER:  AR20060013578


      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      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Kenneth L. Wright             |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Ms. Ernestine I. Fields           |     |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 discharge be upgraded to honorable.

2.  The applicant states his separation from the Army was predicated upon a
series of unauthorized absences.  None of his disciplinary problems were a
result of theft or moral turpitude.  The offenses were purely military
offenses, not offenses recognized in civilian society.  It was just a
matter of the Army and him not being a good match.

3.  The applicant provides two copies of his DD Form 214 (Armed Forces of
the United States Report of Transfer or Discharge) and a letter from the
Lane County Veterans Service Office.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 16 March 1971.  The application submitted in this case is dated
11 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 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 in the Regular Army on 19 November 1969.  He
completed basic combat training but not advanced individual training.

4.  On 10 January 1970, the applicant accepted non-judicial punishment
(NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for
stealing a stereo tape cartridge from the Fort Campbell, KY Post Exchange.

5.  On 21 March 1970, the applicant accepted NJP under Article 15, UCMJ for
failing to go to his appointed place of duty.

6.  On 4 December 1970, the applicant was convicted by a special court-
martial of being absent without leave (AWOL) from 25 April to 25 September
1970.  He was sentenced to be reduced to private, E-1, to confinement at
hard labor for      3 months, and to forfeit $65.00 pay per month for 3
months.
7.  On 15 December 1970, the applicant completed a separation physical
examination and was found qualified for separation.

8.  On 9 February 1971, the applicant completed a psychiatric evaluation.
The applicant was not found to have any disqualifying mental disease or
condition sufficient to warrant disposition through medical/psychiatric
channels.  He was found to be mentally responsible, both to distinguish
right from wrong and to adhere to the right, and to have the mental
capacity to understand and participate in board proceedings.  He was
psychiatrically cleared for any administrative action or disposition deemed
appropriate by his command.

9.  On 22 February 1971, the applicant’s company commander initiated
separation action on the applicant under Army Regulation 635-212 for
unfitness.

10.  On 24 February 1971, the applicant was advised by counsel of the basis
for the contemplated separation action.  He waived consideration of his
case by a board of officers; waived personal appearance before such a
board; elected not to make a statement on his behalf; and waived
representation by counsel.

11.  On 24 February 1971, the applicant’s company commander formally
recommended he be discharged with an undesirable discharge for unfitness.
The commander noted that the applicant had shown a propensity for going
AWOL and that he had used drugs to help him get by, but now the applicant
felt like he was in a bad condition.

12.  On 25 February 1971, the applicant’s intermediate-level commander
noted that the applicant attributed his AWOL to having received NJP under
Article 15 of the UCMJ for stealing a tape cartridge from a post exchange.
He also noted that the applicant was apprehended, while AWOL, for
possession of dangerous drugs and marijuana.

13.  The appropriate authority approved the recommendation and directed the
applicant be furnished an undesirable discharge.

14.  On 16 March 1971, the applicant was discharged, with an undesirable
discharge, in pay grade E-1, under the provisions of Army Regulation 635-
212 for unfitness.  He had completed 6 months and 18 days of creditable
active service and had 280 days of lost time.

15.  Army Regulation 635-212, in effect at the time, set forth the basic
authority for the separation of enlisted personnel for unfitness or
unsuitability.  The regulation provided, in pertinent part, that members
involved in frequent incidents of a discreditable nature with civil or
military authorities, sexual perversion, drug addiction or the unauthorized
use or possession of habit-forming drugs or marijuana, an established
pattern for shirking, an established pattern showing dishonorable failure
to pay just debts or failure to contribute adequate support to dependents,
were subject to separation for unfitness.  Such action would be taken when
it was clearly established that despite attempts to rehabilitate or develop
him as a satisfactory Soldier further effort was unlikely to succeed.

16.  Army Regulation 635-200 governs the separation of enlisted personnel.
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.

17.  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.

18.  On 17 June 1977, the Army Discharge Review Board (ADRB) denied the
applicant's petition to upgrade his discharge under the Special Discharge
Review Program.

19.  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 administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.  Considering his record
of disciplinary actions which included theft (and which it appears included
drug offenses for which no military disciplinary action was taken), the
characterization of his discharge as under other than honorable conditions
was appropriate.

2.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 17 June 1977.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to this Board expired on 16 June 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

__klw___  __lmd___  __eif___  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.




                                  __Kenneth L. Wright___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060013578                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070410                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19700316                                |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |A51.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]