RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            APRIL 27, 2004
      DOCKET NUMBER:   AR2003091711


      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. Jessie B. Strickland          |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Patrick McGann                |     |Member               |
|     |Ms. Marla Troup                   |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 that his general discharge be upgraded to
honorable.

2.  The applicant states that it is unjust for him to continue to suffer
the effects of his discharge in light of his post-service conduct and
accomplishments.

3.  The applicant provides a copy of a criminal history files search
showing negative results, a copy of a letter indicating his completion of
an Associate Degree in 1976, a letter indicating his pursuit of further
education, three letters of recommendation and a letter of appreciation
from a youth home for his efforts in assisting the home with computer
services.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the Board consider the applicant's post-service
conduct in connection with the applicant's request to upgrade his discharge
to honorable.

2.  Counsel states, in effect, that consideration should be given to the
applicant's post-service conduct in upgrading the applicant's discharge.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 17 November 1971.  The application submitted in this case is
dated 27 May 2003.

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 was born on 7 February 1951 and was inducted in Richmond,
Virginia, on 28 January 1971.  He completed his basic combat training at
Fort Campbell, Kentucky, and was transferred to Fort Bragg, North Carolina,
to undergo on the job training as an artillery surveyor.

4.  On 17 August 1971, nonjudicial punishment was imposed against him for
failure to repair and disobeying a lawful order.  The punishment imposed is
not present in the available records.

5.  On 28 October 1971, he was convicted by a summary court-martial of
wrongfully appropriating a ¼ ton truck.  He was sentenced to confinement at
hard labor for 30 days and a forfeiture of pay.  The convening authority
approved the findings and sentence; however, he suspended that portion of
the sentence pertaining to confinement for a period of 30 days unless
sooner vacated.

6.  On 2 November 1971, the applicant's commander initiated action to
separate him from the service under the provisions of Army Regulation 635-
212 for unsuitability, due to his inability to adjust to the military and
continued poor attitude towards his superiors.  He also stated that the
applicant failed to respond to numerous counseling sessions and efforts to
rehabilitate himself.  He further stated that the applicant is hostile
towards the military and authority in general, that he was unclean,
unkempt, unreliable and completely lacking of any motivation to be a
soldier.

6.  The applicant underwent a mental status evaluation and was deemed to be
mentally responsible, able to distinguish right from wrong and to adhere to
the right.

7.  After consulting with counsel, the applicant waived all of his rights
and elected not to submit a statement in his own behalf.

8.  The appropriate authority approved the recommendation for discharge on
10 November 1971 and directed that he be furnished a General Discharge
Certificate.

9.  Accordingly, he was discharged under honorable conditions on 17
November 1971, under the provisions of Army Regulation 635-212, for
unsuitability.  He had served 9 months and 19 days of total active service.

10.  There is no indication in the available records to show that the
applicant ever applied to the Army Discharge Review Board for an upgrade of
his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-212, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  It provided, in
pertinent part, that members who demonstrated an inability to adapt to the
demands of the military were subject to separation for unsuitability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in
accordance with applicable regulations with no procedural errors that would
tend to jeopardize his rights.

2.  Accordingly, the type of discharge and the reasons therefore were
appropriate considering the facts of the case.

3.  The applicant's contentions and supported documents have been
considered by the Board; however, they are not sufficiently mitigating to
warrant an upgrade to a fully honorable discharge when his overall record
of undistinguished service over a short period of time is taken into
consideration.

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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 17 November 1971; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 16 November 1974.  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 RELIEF

________  ________  ________  GRANT FORMAL HEARING

fe ______  pm______  t______  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.




            ____Fred Eichorn___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003091711                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040427                                |
|TYPE OF DISCHARGE       |(GD)                                    |
|DATE OF DISCHARGE       |1971/1117                               |
|DISCHARGE AUTHORITY     |AR635-212 . . . . .                     |
|DISCHARGE REASON        |UNSUIT                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |730/A78.00                              |
|144.7800                |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |