RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 March 2008
      DOCKET NUMBER:  AR20070017059


      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. James B. Gunlicks             |     |Chairperson          |
|     |Mr. Donald W. Steenfott           |     |Member               |
|     |Mr. Roland S. Venable             |     |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, an upgrade of his undesirable
discharge (UD).

2.  The applicant states, in effect, that his first sergeant gave false and
untrue information, which led to his UD.  He claims it is his belief that
his 1SG staged a series of events that triggered an incident that led to
his discharge, which was unjust.

3.  The applicant provides no documentary evidence 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 15 August 1968.  He was trained in and awarded
military occupational specialty (MOS) 76V (Equipment and Storage
Specialist).

3.  The applicant's record shows that he served in the Republic of Vietnam
(RVN) from 29 October 1969 through 17 December 1970, and that he earned the
National Defense Service Medal, Vietnam Service Medal, and the RVN Campaign
Medal with Device (1960).  His record documents no acts of valor or
significant achievement.

4.  The applicant's disciplinary record 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, and his
conviction by a Special Court-Martial (SPCM).

5.  While serving in Germany, the applicant accepted NJP on the following
dates for the offenses indicated:  On 7 April 1969, for being absent from
his unit without authority; 18 April 1969, for disorderly conduct and
disobeying a lawful order; and 12 May 1969, for being absent from his unit
without authority, being drunk and disorderly, and resisting arrest.

6.  On 30 May 1970, while he was serving in the RVN, an SPCM found the
applicant guilty of violating the following Articles of the UCMJ by
committing the offenses indicated:  Article 89 (4 Specifications) of
behaving with disrespect toward a commissioned officer; Article 90, by
disobeying the lawful order of a superior commissioned officer; Article 91,
by striking a senior noncommissioned officer; and Article 134, by breaking
restriction.  The resultant sentence was confinement at hard labor for 2
1/2 months, reduction to private/E-1 (PV1), and forfeiture of $67.00 per
month for 2 1/2 months.

7.  The applicant's record is void of a separation packet containing the
specific facts and circumstances surrounding the applicant's discharge
processing.  The record does include a properly constituted separation
document (DD Form 214) that identifies the authority and reason for the
applicant's discharge.

8.  The DD Form 214 issued to the applicant upon his discharge on 18
December 1970, shows he was separated under the provisions of Army
Regulation
635-212, by reason of Unfitness (frequent incidents of a discreditable
nature with civil or military authorities), and that he received an UD.  It
also shows that at the time of his separation, he held the rank of PV1 and
had completed a total of
2 years, 2 months, and 1 day of creditable active military service and had
accrued 63 days of time lost.  The applicant authenticated the separation
document with his signature on the date of his separation.

9.  Although his record is void of an Army Discharge Review Board (ADRB)
Case Summary, historical records show the ADRB considered and denied the
applicant's request for an upgrade of his UD on 7 August 1979.

10.  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.  Although the separation authority could
issue a general, under honorable conditions discharge (GD) or honorable
discharge (HD) if warranted by the member's overall record of service, an
UD was normally considered appropriate for members separating under these
provisions.


11.  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.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge was unjust and based on
unfair treatment by his 1SG was carefully considered.  However, there is
insufficient evidence to support this claim.

2.  The record is void of the specific facts and circumstances surrounding
his discharge processing.  However, it does contain a properly constituted
DD Form 214 that identifies the reason and characterization of the
applicant’s discharge.  The applicant authenticated this document with his
signature on the date of his separation.  Therefore, Government regularity
in the discharge process is presumed.  Absent evidence to the contrary, it
is presumed that all requirements of law and regulation were met, and that
the rights of the applicant were fully protected throughout his discharge
processing.

3.  Further, given the applicant's extensive disciplinary history, his
record did not support a GD or HD at the time of his discharge, and does
not support an upgrade now.  The applicant's UD accurately reflects his
overall record of undistinguished service.

4.  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

__JBG___  __DWS__  __RSV__  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.




                                  _____James B. Gunlicks____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070017059                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2008/02/DD                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1970/12/18                              |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]