RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      23 March 2006
      DOCKET NUMBER:  AR20050004237


      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. Carl W. S. Chun               |     |Director             |
|     |Mr. Luis Almodova                 |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Mr. Jeffrey P.  Parsons           |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 be
upgraded.

2.  The applicant states, in effect, that he deserves to have his
discharge changed since the Army felt his not going to Vietnam was wrong.
 He asks how many young men were lost in training at that time because
training was cut in half so that the Soldiers could be shipped overseas
to fight.  He states that he got hurt on post the very first day of
training in Company C at Fort Leonard Wood, Missouri.  His left leg is
still messed up and then his left shoulder came out in training in
Company B at Fort Leonard Wood.  The Army put a pin in his shoulder and
he gets pain in his arm when he drives but the Army doesn't want to look
at how many Soldiers got hurt even if they did not go anywhere.  He adds
that he was so proud to be a part of the Army at the time and would guess
that he is lucky to get anything from the Army.  He just turned 60 last
year and all this time he wishes he could have gone back to change the
action of a young black boy fresh out of high school.

3.  The applicant submitted no additional documents to support his request
for an upgrade of his discharge.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice that
occurred on 31 August 1978, the date the applicant was notified that his
"previous upgrading of your discharge has been re-reviewed by the Army
Discharge Review Board as required by Public Law 95-126" and that, "As a
result of this review, the Board determined that you do not qualify for
upgrading under the new uniform standards." The application submitted in
this case is dated 4 March 2005.

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 limitation 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 for 3 years on 11 June 1964.
 He completed basic combat training at Fort Leonard Wood, Missouri.
4.  On 30 September 1964, the applicant received a special court-martial.
He was found guilty of being absent without proper authority from his unit
on 17 August 1964 and remaining absent until 1 September 1964.  The
applicant was sentenced to a forfeiture of $27.00 pay for 3 months and to
be confined at hard labor for 3 months.  The sentence was approved and
ordered executed on 2 October 1964; however, the execution of that portion
of the sentence to confinement at hard labor for three months was suspended
for 3 months, unless sooner vacated.

5.  The applicant was advanced to the rank and pay grade, Private, E-2, on
2 January 1965.  The applicant’s records show this would be the highest
rank and pay grade he would attain while he served in the Regular Army.

6.  On 3 June 1965, the applicant received a second special court-
martial.  He was found guilty of departing absent without proper
authority from his unit on 19 April 1965, and remaining absent until 12
May 1965, and departing absent from his unit on 20 May 1965, and
remaining absent until 25 May 1965.  The applicant was sentenced to a
forfeiture of $28.00 pay for 6 months, to be confined at hard labor for
6 months, and to be reduced to the rank and pay grade, Private, E-1.
The sentence was approved and ordered executed on 7 June 1965; however,
the execution of that portion of the sentence to confinement at hard
labor for 6 months was suspended for 6 months, unless the suspension was
sooner vacated.

7.  Item 44 (Time Lost), of the applicant's DA Form 20, Enlisted
Qualification Record, shows the applicant was confined from 3 June to 7
June 1965.

8.  Item 44, of the applicant's DA Form 20, shows the applicant departed
absent without leave on 3 July 1965 and remained so absent until 8 October
1965.

9.  On 27 January 1966, the applicant's suspended sentence to 6 months
confinement at hard labor was vacated.  The unexecuted portion of the
sentence to confinement at hard labor for 6 months was ordered executed
by Special Court-Martial Orders Number 78, Special Troops, US Army
Garrison, Fort Ord, California. The applicant was to be confined at the
post stockade at Fort Ord.

10.  On 1 February 1966, the applicant received a special court-martial.
He was found guilty of being absent without proper authority from his
unit on 3 July 1965 and remaining absent until 8 October 1965.  The
applicant was sentenced to a forfeiture of $35.00 pay for 6 months and to
be confined at hard labor for 6 months.  The sentence was approved and
ordered executed on 3 February 1966.

11.  Item 44, of the applicant's enlisted qualification record, shows he
was placed in confinement from 9 October 1965 to 7 November 1966.

12.  Headquarters Detachment, 169th Maintenance Battalion (General
Support), Fort Hood, Texas, published Unit Orders 18, paragraph 1, reducing
the applicant from the rank and pay grade, Private, E-2, to Private, E-1,
with an effective date of 20 March 1967, due to his approved undesirable
discharge.

13.  On 20 March 1967, the applicant was discharged, in the rank and pay
grade, Private, E-1, under the provisions of Army Regulation (AR) 635-
212, with an undesirable discharge. The applicant's service was
characterized as, under conditions other than honorable.  The separation
program number (SPN) 28B (unfitness-involved in frequent incidents of
discreditable nature with civil or military authorities), was entered on
the applicant's DD Form 214.  On the date of his discharge, the applicant
had completed 1 year, 1 month, and 27 days, active military service.  The
applicant had lost time for the following periods:  19 April through 24
May 1965; 3 through 7 June 1965; 3 July 65 through 7 November 1966; 5
through 15 January 1967; 23 January through 15 February 1967; 17 through
31 August 1964; and 1 October 1966.  All this lost time was related to
his absences without leave and confinement.

14.  On 9 February 1977, the applicant applied to the Army Discharge Review
Board for an upgrade of his discharge under the "DOD Discharge Review
Program (Special)."

15.  On 9 August 1977, the applicant was informed that he had been granted
an upgrade of his discharge to under honorable conditions (General) under
the DOD Discharge Review Program (Special).  The applicant's originally
issued DD Form 214 was voided and a new DD Form 214 was prepared and
distributed to the applicant.

16.  On 3 May 1978, the applicant applied to the Army Discharge Review
Board for an upgrade of his discharge within that board’s 15-year statute
of limitations.

17.  On 2 July 1978, the Army Discharge Review Board reviewed the
applicant's discharge and voted unanimously not to affirm the Special
Discharge Review Board's upgrade under the uniform standards.  The
record, the board stated, revealed numerous periods of absence without
leave interspersed by confinement.  The record showed that the applicant
never became a productive Soldier during the time of his service and the
board felt there was insufficient ground for an affirmative vote.
18.  On 16 August 1978, a DD Form 215, Correction to DD Form 214, Report
of Separation from Active Duty, was prepared by the Office of The
Adjutant General.  The following was added to Item 27 (sic) (Remarks) of
the applicant's DD Form 214 with an effective date 20 March 1967:
"Discharge reviewed under the provisions of Public Law 95-126 and a
determination made that characterization of service was warranted under
the provisions of Department of Defense Special Discharge Review Program
4 April 1977."

19.  On 31 August 1978, a letter was sent to the applicant from the
Office of The Adjutant General and The Adjutant General Center,
Washington D.C.  In the letter, the applicant was notified that, "The
previous upgrading of your discharge has been re-reviewed by the Army
Discharge Review Board as required by Public Law 95-126.  As a result of
this review, the Board determined that you do not qualify for upgrading
under the new uniform standards for discharge review.  Accordingly, your
upgraded discharge under the 'DOD Discharge Review Program (Special)' was
not affirmed."  The letter to the applicant concluded by stating, "The DD
Form 215 in no way changes or modifies the upgraded discharge you
previously received.  However, because of the new law, you will not be
able to use that discharge to qualify for benefits under the Veterans
Administration [now the Department of Veterans Affairs]."

20.  On 2 January 1979, the applicant applied to the Army Discharge
Review Board for an upgrade of his discharge.  The applicant requested
that he be allowed to appear before and present his case for the upgrade.

21.  On 7 July 1982, the Army Discharge Review Board responded to the
applicant's request.  He was notified he could be scheduled for a personal
appearance hearing in Washington D.C. or in front of a traveling panel or
hearing examiner closest to the location he requested in his application to
the board.  The letter was returned to sender – not deliverable as
addressed.

22.  On 8 November 1982, the applicant was notified that his request for a
personal review had been granted.  After analysis of the material
contained in his official military personnel file a determination was made
that his case was scheduled for review during the month of November 1982
in St. Louis, Missouri; however, since the letter notifying him of this
scheduling was returned undeliverable, his case had subsequently been
rescheduled for review on the record alone.  The Chief, Administrative
Support Division, Army Council of Review Boards, advised the applicant
that further analysis of his record indicated that his
case was previously reviewed on 11 May 1978 as a record only review and by
virtue of this review, he was not eligible for further consideration by
the board.  He was advised that his case was being closed and his records
were being returned to file without further action.

23.  AR 635-212, then in effect, sets forth the policy and provides
procedures and guidance for eliminating enlisted personnel who are found
to be unfit or unsuitable for further military service.  When separation
for unfitness was warranted, an honorable, general, or undesirable
discharge was issued, as determined by the separation authority and based
upon the individual's entire record.  When an individual was to be
discharged as unfit with an undesirable discharge, the convening
authority would direct his immediate reduction to the lowest enlisted
grade under the provisions of AR 600-200, Chapter 7, section VII, then in
effect.

24.  The Special Discharge Review Program was implemented on 5 April 1977
to effect the review, by application, of all undesirable (Under Other than
Honorable Conditions) or general discharges awarded during the period 4
August 1964 and 23 March 1973 under criteria more favorable than those of
regular review.

25.  On 8 October 1977, Public Law 95-126 was enacted.  This legislation
denied Veterans Administration (VA) benefits to any former service member
who had been AWOL for more than 180 consecutive days, or who had been
classified as a deserter or a conscientious objector.  The DOD was required
to establish historically consistent, uniform standards for discharge
reviews.  Reconsideration using these uniform standards was required for
all discharges previously upgraded under the Special Discharge Review
Program and certain other programs was required.  Individuals whose Special
Discharge Review Program upgrades were not affirmed upon review under these
historically consistent uniform standards were not entitled to VA benefits,
unless they had been entitled to such benefits before their Special
Discharge Review Program review.

26.  The above referenced law, provided generally, that no VA benefits
could be granted based on any discharge upgraded under either the Ford
Memorandum of 19 January 1977, or the DOD Special Discharge Review
Program.  It required the establishment of uniform published standards
which did not provide for automatically granting or denying a discharge
upgrade for any case or class of cases.  The services were then required
to individually compare each discharge previously upgraded under one of
the special discharge review programs to the uniform standards and to
affirm only those cases where the case met those standards.
27.  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 was discharged under the provisions of AR 635-212 for
unfitness-involved in frequent incidents of discreditable nature with civil
or military authorities, with an undesirable discharge, on 20 March 1967.

2.  The applicant applied to the Army Discharge Review Board for an upgrade
of his discharge under the DOD Discharge Review Program (Special).

3.  The applicant was granted an upgrade of his discharge to under
honorable conditions (General) under the DOD Discharge Review Program
(Special).  The applicant's originally issued DD Form 214 was voided and a
new DD Form 214 was prepared and distributed to the applicant.

4.  The applicant applied to the ADRB for a further upgrade of his
discharge.  The ADRB reviewed the applicant's discharge and voted
unanimously not to affirm the Special Discharge Review Board's upgrade
under the uniform standards.

5.  The applicant applied to the Army Discharge Review Board for an upgrade
of his discharge.  He asked that he be allowed to appear before the board
and present his case for the upgrade in person.  The ADRB scheduled a
personal appearance hearing in Washington D.C. and notified him of the
appearance by mail.  The letter was returned to sender - not deliverable as
addressed.  Because the letter notifying him of this scheduling was
returned undeliverable, his case was subsequently rescheduled for review on
the record alone.  He was advised that based on this review and further
analysis of his record which had been previously reviewed, he was not
eligible for further consideration by the board.  He was advised that his
case was being closed and his records were being returned to file without
further action.

6.  During his service, the applicant was subjected to three special courts-
martial and he accumulated 584 days lost time due to absence without leave
and confinement.

7.  The evidence shows that the highest rank and pay grade the applicant
attained while he served on active duty in the Army was Private, E-2.  The
applicant's records contain no evidence of acts of valor or achievement
which would merit consideration for an upgrade of his undesirable
discharge.  The applicant is therefore not entitled to an upgrade of his
discharge to either an under honorable (general) or an honorable discharge.

8.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 31 August 1978.
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 August 1981.  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

__EM ___  _JPP____  __JI_ ___  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.




                                  ____John Infante_____
                                            CHAIRPERSON


                                    INDEX

|CASE ID                    |AR20050004237                        |
|SUFFIX                     |                                     |
|RECON                      |                                     |
|DATE BOARDED               |20060323                             |
|TYPE OF DISCHARGE          |UD                                   |
|DATE OF DISCHARGE          |19670320                             |
|DISCHARGE AUTHORITY        |AR 635-212                           |
|DISCHARGE REASON           |                                     |
|BOARD DECISION             |DENY                                 |
|REVIEW AUTHORITY           |                                     |
|ISSUES         1.  360     |144.0000                             |
|2.   394 A0101.33          |144.0133                             |
|3.                         |                                     |
|4.                         |                                     |
|5.                         |                                     |
|6.                         |                                     |


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