RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 February 2008
      DOCKET NUMBER:  AR20070015338


      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:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Ms. Marla J. N. Troup             |     |Member               |
|     |Mr. David R. Gallagher            |     |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 to a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, that shortly after he left the Army,
he realized he made a big mistake.  He states that he made a lot of bad
choices at that time, and it took him awhile to get turned around and learn
responsibility, which is needed in everyone's life.  He states that it is
now his hope that the Board will take these factors into consideration and
grant him an upgrade of his discharge.

3.  The applicant provides a self-authored statement and six third-party
statements 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 22 September 1969.  He successfully completed basic
combat training at Fort Dix, New Jersey and advanced individual training
(AIT) at Fort Sam Houston, Texas.  Upon completion of AIT, he was awarded
military occupational specialty (MOS) 91E (Dental Specialist).  His
Enlisted Qualification Record (DA Form 20) shows, in Item 33 (Appointments
and Reductions), that he was advanced to private/E-2 (PV2) on 22 January
1970, and that this is the highest rank he attained while serving on active
duty.  Item 41 (Awards and Decorations) shows that during his active duty
tenure, he earned the National Defense Service Medal.  Item 44 (Time Lost)
shows he accrued 34 days of time lost during four separate periods of being
absent without leave (AWOL) between 25 May and 11 November 1970.

3.  The applicant's record documents no acts of valor, significant
achievement, or service warranting special recognition.  It does reveal 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 between 15 October 1969
and 17 September 1970, and a Summary Court-Martial (SCM) conviction on 1
October 1970.

4.  On 17 November 1970, the unit commander notified the applicant of his
intent to process the applicant for discharge from the service under the
provisions of Army Regulation 635-212, by reason of unfitness based the
applicant's established pattern of shirking and his commission of incidents
of a discreditable nature.

5.  On 2 December 1970, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation action, of the rights
available to him and of the effect of a waiver of those rights.  Subsequent
to this counseling, he waived his right to have his case considered by a
board of officers and to a personal appearance before a board of officers
and he waived representation by counsel.  He also elected to submit a
statement in his own behalf; however, this statement is not on file in the
record.

6.  On 29 December 1970, the separation authority approved the applicant's
separation under the provisions of Army Regulation 635-212, by reason of
unfitness, and directed the applicant receive an UD.  On 6 January 1971,
the applicant was discharged accordingly.  The separation document (DD Form
214) he was issued at the time shows he completed a total of 1 year, 2
months and
11 days of creditable active military service and that he accrued 34 days
of time lost due to being AWOL.

7.  There is no indication that the applicant petitioned the Army Discharge
Review Board (ADRB) for an upgrade of his discharge within that board's 15-
year statute of limitations.

8.  The applicant provides six third-party statements in support of his
application. The individuals submitting these statements all attest to the
applicant's excellent character and good post service conduct.

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.  The separation authority could authorize
a general under honorable conditions discharge (GD) or honorable discharge
if warranted by the member's record of service; however, an UD was normally
considered appropriate for members separating for unfitness.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his UD should be upgraded because he
has realized his mistakes and revised his conduct, and the supporting
statements he provided, were carefully considered.  However, his record
reveals an extensive disciplinary history that includes his acceptance of
NJP on three separate occasions and a SCM conviction.  Although his post
service conduct is noteworthy, given his record of misconduct, this factor
alone is not sufficiently mitigating to support granting the requested
relief.

2.  The evidence of record confirms the applicant's separation processing
was accomplished in accordance with the applicable regulation.  All
requirements of law and regulation were met and his rights were fully
protected throughout the separation process.  Further, the applicant's UD
accurately reflects his overall record of service.

3.  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

___RTD _  __MJNT _  __DRG__  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.




                                  _____Richard T. Dunbar___
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20070015338                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2008/02/DD                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1971/01/06                              |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |Unfit                                   |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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