RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 August 2007
      DOCKET NUMBER:  AR20070003494


      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             |
|     |Ms. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Michael J. Flynn              |     |Chairperson          |
|     |Mr. Larry W. Racster              |     |Member               |
|     |Mr. Donald W. Steenfott           |     |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 discharge be upgraded.

2.  The applicant states, in effect, that his leg was still in pain from
being wounded.  He was told to go on patrol by his sergeant when he
informed him about the pain.

3.  The applicant provides two letters in support this application.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the
Army Board for Correction of Military Records (ABCMR) to excuse an
applicant’s failure to timely file within the 3-year statute of limitations
if the ABCMR determines it would be in the interest of justice to do so.
While it appears the applicant did not file within the time frame provided
in the statute of limitations, the ABCMR has elected to conduct a
substantive review of this case and, only to the extent relief, if any, is
granted, has determined it is in the interest of justice to excuse the
applicant’s failure to timely file.  In all other respects, there are
insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s record shows that he was inducted into the Army of the
United States on 1 February 1968, for a period of 2 years.  He completed
the required training and was awarded Military Occupational Specialty (MOS)
11B (Light Weapons Infantryman).  The highest grade he attained was pay
grade E-2.

3.  On 25 October 1968, the applicant was convicted by a Special Court-
Martial (SPCM) of being absent without leave (AWOL) from 2 July 1968 to
20 September 1968.  He was sentenced to confinement at hard labor for
6 months (suspended for 6 months).

4.  On 16 June 1969, the applicant was convicted by a SPCM for willfully
disobeying a lawful order.  He was sentenced to a forfeiture of $73.00 pay
per month for 6 months and confinement at hard labor for 30 days.

5.  On 26 June 1969, the applicant was advised by the unit commander that
he was being recommended for discharge under the provisions of Army
Regulation 635-212, by reason of unfitness.  The applicant consulted with
legal counsel and after being advised of the basis for the contemplated
separation, its effects and the rights available to him, he waived his
right to consideration of his case by a board of officers, personal
appearance before a board of officers, and his right to counsel.  The
applicant did not submit a statement in his behalf.

6.  On 3 July 1969, the applicant was evaluated by a psychiatrist.  The
applicant was found mentally responsible, able to distinguish right from
wrong and to adhere to the right, and had the mental capacity to understand
and participate in board proceedings.

7.  On the same day, a medical evaluation found the applicant physically
fit for retention or separation.

8.  On 13 July 1969, the separation authority directed the applicant’s
separation under the provisions of Army Regulation 635-212 for unfitness
and that he receive an Undesirable Discharge Certificate.  On 20 July 1969,
the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of
the United States Report of Transfer or Discharge) issued to him at the
time, confirms the applicant completed a total of 1 year, 1 month and
6 days of creditable active military service and that he accrued a total of
134 days of time lost due AWOLs and confinements.

9.  Army Regulation 635-212, in effect at the time, set forth the basic
authority, established the policy, and prescribed the procedures for
separating members for unfitness.  An undesirable discharge was normally
considered appropriate for members separating under these provisions.

10.  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 (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.

11.  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.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions and the third-party statements provided by
the applicant were carefully considered.  However, these factors are not
found to be sufficiently mitigating to warrant the requested relief.

2.  The evidence of record confirms his unit commander notified the
applicant of the contemplated separation action and that he consulted with
legal counsel.  It further shows that after being advised of the basis for
the contemplated separation action and its possible effects, he voluntarily
elected to waive his right to have his case considered by a board of
officers and he elected not to submit a rebuttal statement in his own
behalf.

3.  After carefully evaluating the evidence of record in this case, it is
determined that the applicant’s discharge processing was conducted in
accordance with law and regulations applicable at the time and that the
character of his service is commensurate with his overall record of
military service.  The evidence of record confirms that the applicant’s
rights were fully protected throughout the separation process.

4.  Lacking evidence to the contrary, it is concluded that all requirements
of law and regulation were met; the rights of the applicant were fully
protected throughout the separation process.

5.  In order to justify correction of a military record the applicant must
satisfactorily show, or it must otherwise satisfactorily appear, that the
record is in error or unjust.  The applicant has failed to submit
sufficient evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MJF__  __LWR__  ___DWS_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.





                                       ___Michael J. Flynn_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/08/14                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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