RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 July 2007
      DOCKET NUMBER:  AR20060013865


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Luis Almodova                 |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. John N. Sloan                 |     |Chairperson          |
|     |Mr. David K. Haasenritter         |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 a general or an honorable discharge and that the reason be
changed.

2.  The applicant states, in effect, that the discharge he received was
due to his own fault and age.  He adds that he truly regrets his actions
back in 1973.  He was young and ill advised by his peers.  He states he
put in for a hardship discharge and it was denied.  He has had over
thirty years to think about his mistakes, and now that he is older, he
can only hope that he can have an upgrade so he can get some type of
health benefits.  He has seen other people with worse discharges get them
upgraded.  If he could take back time and make things right, he would.
He believes we have the greatest country in the world and stands behind
the boys overseas.  If it meant that he could make things right by going
over there himself he would so at least he could have a general
discharge.

3.  In support of his request, the applicant submitted no additional
documents besides his DD Form 149, Application for Correction of Military
Record.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 21 August 1974, the date he was discharged with an
undesirable discharge.  The application submitted in this case is dated 22
September 2006 and was received for processing on 2 October 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 20
June 1972.  The applicant successfully completed basic combat training at
Fort Leonard Wood, Missouri.  He was sent to Fort Hood, Texas, to undergo
advanced training in the military occupational specialty (MOS) 11E,
(Armor Crewman).
4.  On 15 December 1972, the applicant was promoted to the rank/pay
grade, Private First Class/E-3.  This would be the highest rank/pay grade
the applicant would hold while in the Army.

5.  On 3 May 1973, the applicant received non-judicial punishment under
the provisions of Article 15 of the Uniform Code of Military Justice
(UCMJ) for absenting himself from his place of duty on 1 May 1973.  The
imposed punishment was a forfeiture of $75.00 pay per month for 1 month,
and to be restricted to the company area for 30 days (suspended for 90
days).  The applicant did not appeal the punishment.

6.  On 14 May 1973, the applicant received non-judicial punishment under
the provisions of Article 15 of the UCMJ for failing to go to his appointed
place of duty at the prescribed time on 23 April 1973.  The imposed
punishment was performance of extra duty for 7 days.  The applicant did not
appeal the punishment.

7.  On 3 December 1973, the applicant was reported absent without leave
from his unit.  The applicant was dropped from the rolls of his unit on 1
January 1974.

8.  The applicant surrendered himself to military authorities in Phoenix,
Arizona, on 5 February 1974.

9.  On 21 February 1974, the applicant received a special court-martial.
He was found guilty of absenting himself without authority on 3 December
1973 and remaining absent without leave until on or about 5 February
1974.  The applicant was sentenced to reduction to private, pay grade, E-
1, to perform hard labor without confinement for 45 days, to be
restricted to the company area for 45 days, and to forfeit $150.00 pay
per month for 2 months.  The sentence was adjudged on 21 February 1974
and approved on the same date.  The transcript of the trial and the
sentence imposed were reviewed by the office of the Staff Judge Advocate,
2nd Armored Division, Fort Hood, Texas, and were found to be correct in
law and in fact on 4 March 1974.

10.  On 18 April 1974, the applicant received non-judicial punishment under
the provisions of Article 15 of the UCMJ for being disrespectful to his
superior noncommissioned officer on 12 April 1974.  The imposed punishment
was a forfeiture of $75.00 (suspended for 30 days), and restriction and
extra duty for 14 days.  The applicant did not appeal the punishment.
11.  On 10 June 1974, the applicant received non-judicial punishment under
the provisions of Article 15 of the UCMJ for disobeying a lawful order from
a noncommissioned officer on 5 June 1974.  The imposed punishment was
restriction and extra duty for 30 days.  The applicant did not appeal the
punishment.

12.  On 25 June 1974, the applicant's unit commander notified him he was
taking action to eliminate him from the Army for unfitness under the
provisions of AR 635-200, Chapter 13, for his immaturity, intentional
traits of shirking of duties, and habits and traits of character manifested
by his inability to receive orders from superiors without the reactions of
gross disrespect, anger, and childish disobedience.  He was advised that
the recommendation was being made due to his frequent incidents of a
discreditable nature with military authorities.

13.   The applicant was advised that he had the right to consult with
consulting counsel, present his case before a board of officers, to submit
statements in his behalf, to be represented at any hearing by appointed
counsel for representation, and to waive any or all of his rights.

14.  Counsel advised the applicant, on 26 June 1974, of the basis for the
contemplated action.  He waived consideration of his case by a board of
officers, a personal appearance before a board of officers, and elected not
to submit a statement in his own behalf.  The applicant waived
representation by appointed counsel and civilian counsel at his own
expense.

15.  When counseled, the applicant stated he understood he could expect to
encounter substantial prejudice in civilian life in the event a general
discharge under honorable conditions was issued to him.  He further
understood that as a result of issuance of an undesirable discharge, under
conditions other than honorable, he could be ineligible for many or all
benefits as a veteran under both Federal and state laws and that he could
expect to encounter substantial prejudice in civilian life.

16.  On 1 July 1974, the Chief, Department of Clinics, submitted a DA Form
2496, Disposition Form, to the applicant's commander.  He advised that
after a complete review of the applicant's physical and mental
examinations they failed to reveal any defects which would have
contributed to the applicant's misconduct.  The applicant was found
physically and mentally fit for duty without profile limitations.  He was
deemed to be responsible for his acts, able to understand and participate
in board proceedings.

17.  On 17 July 1974, the applicant's unit commander recommended that the
applicant be required to appear before a board of officers convened under
the provisions of AR 635-200, for the purpose of determining whether he
should be discharged before the expiration of his term of service.  The
applicant's chain of command was unanimous in their recommendation for the
applicant's elimination from service.

18.  On 5 August 1974, the authority empowered to approve the separation
action, a brigadier general, ordered that the applicant be discharged for
unfitness with an undesirable discharge.

19.  The applicant was discharged in the rank and pay grade of Private, E-
1, on 21 August 1974, under the provisions of AR 635-200, Chapter 13, for
unfitness.  He was issued an undesirable discharge with his service
characterized as under other than honorable conditions.  On the date of
his discharge, the applicant had completed 1 year, 11 months, and 9 days
total active military service, with 85 days lost due to absence without
leave.

20.  Item 26 (Decorations, Medals, Badges, Commendations, Citations, and
Campaign Ribbons Awarded or Authorized), of the applicant's DD Form 214,
Report of Separation from Active Duty, shows he was awarded the
Sharpshooter Marksmanship Qualification Badge, with Rifle and Hand
Grenade Bars.  The record contains no documentary evidence of acts of
valor or achievement which would warrant special recognition.

21.  The applicant applied to the Army Discharge Review Board (ADRB) for
an upgrade of his discharge within its 15-year statute of limitations.  On
22 May 1981, the ADRB advised him that after careful consideration of his
military records and all other available evidence, it had determined that
he had been properly discharged.

22.  AR 635-200 provides the authority for the separation of enlisted
personnel.  Chapter 13 establishes procedures and guidance for
eliminating enlisted personnel found to be unfit or unsuitable for
further military service.  An individual separated by reason of unfitness
will be furnished an undesirable discharge certificate, except that an
honorable or a general discharge certificate may be issued if the
individual has been awarded a personal decoration or if warranted by the
particular circumstances in his case.  The type of discharge to be issued
will be directed by the convening authority.
23.  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.

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.  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 Army Board for Correction of Military Records
(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.

26.  In his application to the Board, the applicant stated he was young and
ill advised by his peers.  He added that he had put in for a hardship
discharge and it was denied.

27.  In his application to the Board, the applicant additionally stated he
had hopes he could have his discharge upgraded so that he could get some
kind of health benefits because he had seen others with worse discharges
get them upgraded.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in
compliance with applicable regulations with no procedural errors, which
would tend to jeopardize his rights.

2.  The applicant alleges in his application to the Board that his
discharge was attributable in part to his being young and ill advised by
his peers.  The record shows that at the time the applicant enlisted in the
Regular Army, he was over 17 years and 6 months of age.  There is no
evidence that he was any less mature than other soldiers of the same or of
a younger age who served successfully and completed their term of service.

3. There is no evidence in the applicant's record that he requested a
hardship discharge and that it was denied.  At the time of the applicant's
service there were ample social and other service organizations available
to him where he could have sought quality advice and counseling for
personal issues he may have been facing.  To resort to taking advice from
his peers and resorting to absenting himself without authority were not
the best courses of action to take in resolving his personal problems.

4.  The evidence shows that the Chief, Department of Clinics, advised
the applicant's unit commander that, after a complete review of the
applicant's physical and mental examinations they failed to reveal any
defects which would have contributed to his misconduct.  The applicant
was found physically and mentally fit for duty without profile
limitations and was determined to be responsible for his acts, and able
to understand and participate in board proceedings.

5.  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.  In his relatively short period of
active duty service, the applicant was punished four times, under the
provisions of Article 15 of the UCMJ, for being disrespectful and
disobedient to his superior noncommissioned officer, and for failing to go
to his prescribed place of duty and for absenting himself from his
prescribed place of duty.  In addition, the applicant received a special
court-martial for being absent without leave.  By his continued misconduct,
the applicant rendered himself unfit for further military service.

6.  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.

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

8.  The Board acknowledges the applicant's desire to have his undesirable
discharge upgraded to enable him to make application to the Department of
Veterans Affairs and to other Federal and state benefits-providing
organizations for medical benefits; however, the Board does not grant
relief solely for the purposes of an applicant qualifying for benefits
administered by those agencies.

9.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 22 May 1981.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to this Board expired on 21 May 1984.  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

__LD____  __DKH__  ___S____  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 N. Sloane_______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060013865                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070717                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19740821                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 13                  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |144.5000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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