RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 May 2007
      DOCKET NUMBER:  AR20060016118


      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          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |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 undesirable discharge be upgraded.

2.  The applicant states that the attorney at his special court-martial
told him not to explain his anti-war feelings or the anti-war movements
that happened at Fort Benning, GA.  Then he received the discharge by
resigning.  He still thinks the war was wrong.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 22 March 1971.  The application submitted in this case is dated
1 November 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 22 May 1969.

4.  On 17 July 1969, while in basic combat training at Fort Bragg, NC, the
applicant was absent without leave (AWOL) from on or about 17 to on or
about 20 July 1969.

5.  The applicant completed basic combat training and advanced individual
training, was awarded military occupational specialty 11B (Light Weapons
Infantryman), and was reassigned to Fort Benning, GA.

6.  On 7 October 1970, the applicant completed a separation physical
examination and was found qualified for separation.

7.  On 11 January 1971, a psychiatric evaluation found the applicant to
have no disqualifying mental disease or condition sufficient to warrant
disposition through medical/psychiatric channels.  It found him 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.

8.  On 11 February 1971, the applicant was convicted, contrary to his
pleas, by a special court-martial of being AWOL from 24 October 1969 to 17
April 1970, from 27 April to 22 September 1970, and from 3 to 27 November
1970.  He was sentenced to be reduced to private, E-1 and confinement at
hard labor for three months (the unexecuted portion suspended for one
month).

9.  On 12 February 1971, the commander of the Special Processing Battalion,
  U. S. Army Engineer Center and Fort Belvoir, Fort Belvoir, VA, initiated
separation action on the applicant under the provisions of Army Regulation
  635-212 for unfitness.  The applicant was advised by counsel of the basis
for the contemplated action.  He was advised of his rights by counsel.  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.

10.  On 17 February 1971, the commander recommended the applicant be
discharged for unfitness with an undesirable discharge, noting the
applicant had shown a propensity for absenting himself without leave
despite attempts to rehabilitate or develop him as a satisfactory Soldier.


11.  On 27 February 1971, the appropriate authority approved the
recommendation and directed issuance of an Undesirable Discharge
Certificate.

12.  On 22 March 1971, the applicant was discharged, with an undesirable
discharge and a characterization of service of under other than honorable
conditions, in pay grade E-1, under the provisions of Army Regulation 635-
212 for unfitness.  He had completed 8 months and 26 days of creditable
active service and had about 395 days of lost time.

13.  On 31 October 1985, the Army Discharge Review Board (ADRB) denied the
applicant's petition to upgrade his discharge.  In his request to the ADRB,
the applicant stated his attorney at his court-martial had advised him not
to say he did not agree with the Vietnam conflict.  In a later request for
a personal appearance hearing (which he did not attend), he stated he
completed basic training and advanced individual training.  Then he started
going to anti-war groups and started agreeing with their thoughts.

14.  Army Regulation 635-212, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  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.

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, 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 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 contentions that he was told not to explain at his
court-martial his anti-war feelings or the anti-war movements that happened
at Fort Benning, GA, and that he still thinks the war was wrong, have been
considered.

2.  However, the applicant voluntarily enlisted in the Regular Army during
a period when the war, and anti-war sentiments, was very much in the news.
In addition, his record of AWOLs began before he was out of basic combat
training and before he arrived at Fort Benning.
3.  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 AWOLs, for whatever reason he went AWOL, his undesirable discharge was
appropriate.

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 31 October 1985.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to this Board expired on 30 October 1988.  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___  __phm___  __ksj___  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                 |AR20060016118                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070510                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |9710322                                 |
|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]