RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        4 October 2007
      DOCKET NUMBER:  AR20070007432


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Susan A. Powers               |     |Chairperson          |
|     |Mr. Edward E. Montgomery          |     |Member               |
|     |Mr. Qawiy A. Sabree               |     |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 (UD)
be upgraded.

2.  The applicant states, in effect, that during his time in service, he
was under an extreme amount of emotional and physical stress.  So much so,
that the only way out for him was to turn to intravenous drugs.  He claims
he was never counseled or given a change for rehabilitation.

3.  The applicant provides a copy of his separation document (DD Form 214)
in support of his 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 enlisted in the Regular Army and
entered active duty on 30 September 1972.  He was trained in, awarded, and
served in military occupational specialty (MOS) 11H (Infantry Direct Fire
Crewman), and the highest rank he attained while serving on active duty was
private/E-2 (PV2).

3.  The applicant's record also shows that during his active duty tenure,
he earned the National Defense Service Medal and Expert Marksmanship
Qualification Badge with Rifle Bar.  His record documents no acts of valor,
significant achievement, or service warranting special recognition.

4.  The applicant’s record reveals a disciplinary history that includes his
acceptance of non-judicial punishment (NJP) under the provisions of Article
15 of the Uniform Code of Military Justice (UCMJ) on three separate
occasions.

5.  On 15 August 1973, the applicant accepted NJP for two specifications of
disobeying lawful orders.  His punishment for these offenses was a
forfeiture of $80.00, reduction to prviate/E-1 (PV1), and 7 days of extra
duty.

6.  On 13 September 1973, the applicant accepted NJP for two specifications
of disobeying lawful orders.  His punishment for these offenses was a
forfeiture of $78.00 and 7 days of extra duty.

7.  On 27 September 1973, the applicant accepted NJP for sleeping on guard
duty.  His punishment for this offense was a forfeiture of $76.00.

8.  The applicant's record also contains four formal counseling statements
documenting sessions members of his chain of command conducted with him
between 31 July and 12 September 1973.  The issues documented in these
statements were the applicant's indifference to training, wearing an
earring to formation, and his attitude and hatred for the Army.

9.  On 13 September 1973, the unit commander notified the applicant of his
intent to recommend the applicant for discharge under the provisions of
chapter 13, Army Regulation 635-200, by reason of unfitness.  The commander
also advised the applicant of his rights in connection with the separation
action.

10.  On 26 September 1973, the applicant consulted with legal counsel and
was advised of the basis for the contemplated separation action, its
effects, and of the rights available to him.  Subsequent to this
counseling, the applicant completed an election of rights, in which he
waived his right to have his case considered by and personal appearance
before a board of officers and his right to representation by counsel.  The
applicant indicated that he was submitting a statement in his own behalf;
however, no statement is included in the separation packet.

11.  On 12 October 1973, the separation authority approved the applicant's
discharge under the provisions of chapter 13, Army Regulation 635-200 for
unfitness.  On 31 October 1973, the appropriate authority waived the
rehabilitative transfer requirement on the applicant.  On 13 November 1973,
the applicant was discharged accordingly.  The DD Form 214 he was issued
shows he received an UD after completing a total of 1 year, 1 month, and 14
days of active military service.

12.  On 28 September 1982, after careful consideration of the applicant's
record of service, the Army Discharge Review Board determined the
applicant's discharge was proper and equitable and it voted to deny his
request for an upgrade of his discharge.

13.  Army Regulation 635-200, sets forth the basic authority for the
separation of enlisted personnel.  Chapter 13, in effect at the time,
provided for the separation of members for unfitness.  Although an
honorable discharge (HD) or GD may be issued by the separation authority if
warranted by the member's overall record of service, an UD was normally
considered appropriate for a Soldier discharged under these provisions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his discharge should be upgraded
because he was under extreme emotional and physical stress at the time he
served and because he was never provided rehabilitation were carefully
considered.  However, these factors are not sufficiently mitigating to
support granting the requested relief.

2.  The evidence of record confirms that the applicant failed to respond to
NJP actions imposed to encourage his rehabilitation and to counseling by
members of his chain of command.  Furthermore, his extensive disciplinary
history fully supported his separation processing for unfitness.

3.  The record further confirms the applicant’s discharge processing and
the waiver of rehabilitation requirements were accomplished in accordance
with the regulation in effect at the time.  All requirements of law and
regulation were met and the rights of the applicant were fully protected
throughout the separation process.

4.  The applicant's discharge accurately reflected his overall record of
short and undistinguished service.  Given his extensive disciplinary
history, the applicant's record of military service was not sufficiently
meritorious for the separation authority to support an HD or GD at the time
of his discharge, nor does it support an upgrade at this time.

5.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_SAP___  _EEM____  _QAW___  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.




                                    __Susan A. Powers___
                                            CHAIRPERSON
                                    INDEX

|CASE ID                 |AR20070007432                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/10/04                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1973/11/13                              |
|DISCHARGE AUTHORITY     |AR 635-200 C13                          |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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