RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         01 FEBRUARY 2005
      DOCKET NUMBER:  AR2004106806


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. Walter Morrison               |     |Chairperson          |
|     |Mr. John Meixell                  |     |Member               |
|     |Mr. William Powers                |     |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 1972 discharge under other
than honorable conditions be upgraded.

2.  The applicant states, in two separated applications, that the Army
breached its contract with him.  He states that he had a previous hearing
in which two individuals voted to upgrade his discharge and one voted
against upgrading.  He states that a unanimous decision was required.

3.  The applicant also states that he was told that his discharge was not a
“bad one, when indeed it was.”  He states he was not told the truth about
his discharge, that he was told he would be able to finish high school
while in the military, and that there were several other “counts” in which
the Army breached his enlistment contract.  He also states that the
discharge should be upgraded “for the sake of justice.”

4.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 27 January 1972.  The application submitted in this case
is dated
6 April 2004.

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 limitations 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.  Records available to the Board indicate that the applicant enlisted and
entered active duty on 11 May 1970.  His enlistment contract guaranteed
training in career management field 63 (mechanical maintenance).  The
applicant noted, in his own handwriting on the enlistment contract, that no
additional promises had been made to him beyond the field he would be
trained in.

4.  While undergoing basic combat training at Fort Dix, New Jersey, the
applicant was punished under Article 15 of the Uniform Code of Military
Justice (UCMJ) for being absent from his unit between 3 July and 5 July
1970.  In spite of the UCMJ action, the applicant was promoted to pay grade
E-2 in September 1970.

5.  In November 1970 the applicant was assigned to an artillery unit in
Germany as a mechanic.  He was promoted to pay grade E-3 in December 1970.

6.  Between January 1971 and December 1971 the applicant was punished six
additional times under Article 15 of the UCMJ.  His offenses included
numerous counts of failing to be at his appointed place of duty, wrongfully
appropriating a government vehicle, disobeying an order, possession of a
pipe with marihuana residue, and threatening an officer with a switchblade.

7.  On 7 January 1972 the applicant’s unit commander initiated action to
administratively separate the applicant from active duty for unfitness
under the provisions of Army Regulation 635-212.  He cited the applicant’s
established pattern of shirking and frequent incidents of a discreditable
nature and his flagrant disregard for military authority as the basis for
his recommendation.

8.  The applicant consulted with legal counsel, acknowledged receipt of the
proposed separation, and waived his attendant rights.  In acknowledging
receipt, the applicant noted that he understood that he could expect to
encounter substantial prejudice in civilian life if he were discharged
under other than honorable conditions and that such a discharge could make
him ineligible for many or all benefits as a veteran under both Federal and
State laws.

9.  The commander’s recommendation was approved and on 27 January 1972 the
applicant was discharged under other than honorable conditions.  He was
issued an undesirable discharge certificate.  At the time of his discharge
he had
1 year, 8 months, and 17 days of creditable service.

10.  Army Regulation 635-212, in effect at the time, set forth the basic
authority for the administrative separation of enlisted personnel.  It
provided for the separation for unfitness as a result of a variety of
situations, including frequent incidents of a discreditable nature with
civil or military authorities; drug addiction or the unauthorized use or
possession of habit-forming drugs or marijuana; an established pattern of
shirking; and an established pattern of dishonorable failure to pay just
debts or to contribute adequate support to dependents.  When separation for
unfitness was warranted an undesirable discharge was normally considered
appropriate.

11.  In June 1977 the ADRB (Army Discharge Review Board) determined that
the applicant’s discharge was proper and equitable and that his discharge
was properly characterized as under other than honorable conditions.  Two
of the five voting members of the ADRB voted to upgrade his discharge to
general, while three members voted not to change the discharge.  A majority
vote was required to change the discharge.

12.  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 Army Discharge Review Board (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
Army Board for Correction of Military Records (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.  There is no evidence, and the applicant has not provided any, that his
discharge was conducted unfairly or that it was unjust.  There is no
evidence of “breach of contract” as the applicant suggests.  He was
guaranteed training in the maintenance field and that training was
accomplished.

2.  The applicant acknowledged, after consulting with counsel, that as a
result of his discharge he could expect to encounter substantial prejudice
in civilian life and that the character of his discharge could make him
ineligible for veteran programs under both Federal and State laws.  His
argument that he was lied to about his discharge is not supported by any
evidence available to the Board.

3.  While two of the members of the ADRB did vote to upgrade his discharge,
three members did not, and as such, his discharge was not upgraded.

4.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration in June 1977; therefore, the time for the
applicant to file a request for correction of any error or injustice
expired in June 1980.  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

___WM__  ___JM __  ___WP__  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.




                                  _____Walter Morrison_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004106806                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050201                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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