RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          29 March 2005
      DOCKET NUMBER:  AR20040001053


      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. Rosa M. Chandler              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Ms. Susan A. 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 his undesirable discharge (UD) be upgraded to an
honorable discharge.

2.  The applicant states, in effect, that he believes he was wrongfully
discharged due to the fact that he never had a hearing.  He was asked if he
wanted to go home while in confinement awaiting a court-martial and he
replied, "yes."  He has since been diagnosed has having a bi-polar
disorder.  He believes that this condition, coupled with alcohol abuse,
contributed to the incident that led to his separation.  The applicant also
states that he was advised his UD would automatically be upgraded to an
honorable discharge within 6 months of separation.

3.  The applicant provides in support of his request a copy of his DD Form
214 (Report of Separation form Active Duty), issued on 24 September 1975.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 24 September 1975.  The application submitted in this case is
dated 12 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 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.  On 22 November 1974, the applicant enlisted in the Regular Army for a
period of 3 years and the Unit of Choice Enlistment Option, 7th Infantry
Division, Fort Ord, California.  The applicant completed the required
training and was awarded military occupational specialty (MOS) 11B (Light
Weapons Infantryman).  On
6 May 1975, the applicant was assigned to Fort Ord with duties in his MOS.

4.  On 22 August 1975, the applicant underwent a separation medical
examination and was determined to be qualified for separation.  There was
no evidence of alcohol abuse or any other medical/psychological problems.

5.  The applicant's record does not contain all of the facts and
circumstances surrounding the discharge process.  However, his record does
contain a properly constituted DD Form 214 that was prepared at the time
of his separation.  The
DD Form 214 shows that, on 24 September 1975, he was separated as a result
of an administrative discharge for conduct triable by court martial under
the provisions of chapter 10, Army Regulation 635-200, in pay grade E1
with a UD.  He had completed 10 months and 3 days of active military
service and he had 14 days of lost time, due to reasons that are not
specified in the available record.

6.  The available evidence does not show the applicant has ever applied to
the Army Discharge Review Board (ADRB) for an upgrade of his discharge
within the ADRB's 15-year statute of limitation.

7.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of that regulation provides,
in pertinent part, that a member who has committed an offense or offenses
for which the authorized punishment includes a punitive discharge may, at
any time after the charges have been preferred, submit a request for
discharge for the good of the service in lieu of trial by court-martial.
At the time of the applicant's separation, a UD was appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The available records show the applicant was discharged under the
provisions of chapter 10, Army Regulation 635-200.  Although the facts and
circumstances surrounding the discharge process are missing, he would have
been charged with the commission of an offense(s) punishable under the UCMJ
with a punitive discharge.  He would have consulted with defense counsel
and signed a statement indicating that he had been informed he could
receive a UD and the ramifications of receiving such a discharge.  He would
have voluntarily requested discharge to avoid trial by court-martial.  In
doing so, he would have admitted guilt to the stipulated offense(s) under
the UCMJ.  The Board presumes administrative regularity and the applicant
has provided no information that would indicate the contrary.

2.  The US Army does not have, nor has it ever had, a policy to
automatically upgrade a discharge or to accept a request for the upgrade of
a discharge after a certain amount of time.  Each case is decided on its
own merits when an applicant submits a DD Form 149 (Application for
Correction of Military Record) requesting a change in discharge.  Changes
may be warranted if the evidence supports that the characterization of
service or the reason(s) for discharge, or both, were improper or
inequitable.  The applicant has provided no evidence to support either.

3.  The evidence available does not indicate the applicant had any
medically conditions or alcohol abuse problems that affected his ability to
serve.  The applicant has provided no evidence to the contrary.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 24 September 1975; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
23 September 1978.  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

__mhm___  __phm___  __sap___  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.


                                  Melvin H. Meyer
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040001053                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050329                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |19750924                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 10                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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