RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          17 March 2005
      DOCKET NUMBER:  AR20040001584


      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. John E. Denning               |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 that his undesirable discharge (UD) be upgraded
to a general discharge under honorable conditions.

2.  The applicant states, in effect, that his UD is inequitable because it
is based on one incident over a period of four years.  The applicant also
states that while serving as a military police, he was involved in an
incident in the dining facility where a sergeant pulled his .45 caliber
pistol and pointed it at a table filled with black Soldiers to include
himself.  After pointing the pistol at them, the sergeant ran from the
dining facility and falsely accused him and other black Soldiers of rioting
to disguise the fact that he pointed his pistol at them.  The applicant
also states that he was charged with assaulting an officer because he
resisted being handcuffed and attempted to explain exactly what happened in
the dining facility. False statements were made about his behavior after
this incident occurred.  Prior to the incident occurring, he was a good
Soldier.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 28 April 1973.  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 21 October 1971, the applicant enlisted in the Regular Army for 3
years and training in military occupational specialty (MOS) 67A (Aircraft
Maintenance). The Department of the Army cancelled training for MOS 67A
prior to the applicant being qualified for award of the MOS.  Therefore, he
was given an alternative option.  The applicant opted for training in MOS
16B (Hercules Missile Crewman) and assignment to Korea.  He completed the
training requirements, was awarded MOS 16B and assigned to Korea with
duties in his MOS on 13 May 1972.
4.  On 10 August 1972, nonjudicial punishment (NJP) under the provisions of
Article 15, Uniform Code of Military Justice (UCMJ), was imposed against
him for failure to report to his appointed place of duty at the time
prescribe on 5 August 1972.  His punishment included a forfeiture of $35.00
pay for 1 month.

5.  On 11 September 1972, NJP under the provisions of Article 15, UCMJ, was
imposed against the applicant for leaving his duty section without
authority, with the intent of abandonment, on 11 September 1872.  His
punishment included a forfeiture of $25.00 pay per month for 1 month and 4
days of restriction.

6.  On 17 October 1972, NJP under the provisions of Article 15, UCMJ, was
imposed against the applicant for participating in a breach of the peace by
wrongfully engaging in a fight with five other individuals on 15 October
1972.
His punishment included a forfeiture of $40.00 pay for 1 month.

7.  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
separation and authenticated by him.  The applicant's DD Form 214 shows
that on 28 April 1973, he was separated for the good of the service-in lieu
of trial by court-martial, under the provisions of chapter 10, Army
Regulation 635-200, in pay grade E1 with a UD.  He had completed 1 year, 6
months and 8 days of active military service. The DD Form 214 shows no
recorded lost time.

8.  The applicant applied to the Army Discharge Review Board for review of
his discharge under the Department of Defense (DOD) Discharge Review
Program (Special) (SDRP).  On 29 April 1977, he was advised that he was not
eligible for that program.  To be eligible for that program, he was
required to be discharged during the period 4 August 1964 to 28 March 1973.
 In May 2004, he applied to the ADRB and no action was taken on his
application, because the application was filed outside of the ADRB's 15-
year statue of limitation.

9.  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.  A
discharge under other than honorable conditions is normally considered
appropriate.  However, at the time of the applicant's separation the
regulation provided for the issuance of a UD.
DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the
applicant's discharge proceedings were conducted in accordance with law and
regulations applicable at the time.

2.  The available evidence doses not indicate that the applicant ever
served as a military policeman or that he was involved in an incident that
involved a racial element.  The evidence does show that the applicant was
involved in several incidents over a period of 18 months and that his
characterization of service is commensurate with his overall record of
service.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 April 1973; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
27 April 1976.  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

__jed___  ___jrs__  ___mjf__  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 E. Denning
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040001584                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050317                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |19730428                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 10                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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