RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 February 2005
      DOCKET NUMBER:  AR20040001756


      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. David S. Griffin              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Ms. Shirley L. Powell             |     |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:

      a.  upgrade of his discharge under honorable conditions to a
honorable discharge;

      b.  restoration to staff sergeant/pay grade E-6 from private/pay
grade E-1; and

      c.  award of the Army Good Conduct Medal (4th award).

2.  The applicant states that:

      a.  the punishment he received was too harsh;

      b.  under current standards he would not receive the same type of
discharge;

      c.  he had received previous awards and letters of commendation, and
he had other acts of merit;

      d.  he was generally a good service member, was close to finishing
his enlistment, had a prior honorable discharge, and that he has been a
good citizen since discharge; and

      e.  his first sergeant was after him and he did not commit the
offenses listed on his Certificate of Unsuitability for Reenlistment.

3.  The applicant provides letters of appreciation and commendation, and a
recommendation for promotion; two Enlisted Efficiency Reports; and excerpts
from his military service records.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged or injustice,
which occurred on 6 October 1972, the date of his discharge.  The
application submitted in this case is dated 15 July 2003 and was received
on 21 May 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.  The applicant's complete military service records were not available to
the ABCMR for review.  However, there are sufficient documents for the
Board to conduct a fair and impartial review of this case.

4.  The applicant's available records show that he was discharged on 29
October 1956 from the United States Marine Corps Reserve after serving 1
year,
11 months, and 27 days active duty, which was characterized as honorable.

5.  The records contain a statement that shows the applicant enlisted in
the Regular Army of the United States on 28 January 1960 for a period of
three years.  The records do not contain any documents showing a discharge
from this period of service.

6.  Headquarters, United States Strike Command, MacDill Air Force Base
Special Orders Number 38 (extract), dated 27 February 1968, shows the
applicant reenlisted on 13 March 1968 for a period of six years.

7.  On 22 August 1972, the applicant, then a staff sergeant/pay grade E-6,
was convicted by special court-martial (SPCM) for missing movement through
neglect and absent without leave (AWOL) during the period from 26 June 1972
through 29 June 1972.  His sentence consisted of reduction to the grade of
private/pay grade E-1.  The convening authority approved his sentence on 22
August 1972.

8.  On 29 August 1972, the applicant's unit commander recommended that the
applicant be barred from reenlistment due to habitual misconduct in a
letter with the subject, Certificate of Unsuitability for Reenlistment.  A
letter, dated
29 August 1972, signed by the applicant, indicated that he did not desire
to make a statement.

9.  On 6 September 1972, the applicant's unit commander recommended
immediate separation of the applicant due to his failure to demonstrate
adequate potential for promotion.

10.  On 13 September 1972, Headquarters, 82nd Airborne Division at Fort
Bragg approved the bar to reenlistment.

11.  On 25 September 1972, Headquarters, 82nd Airborne Division approved
the applicant's immediate discharge and directed that the applicant be
furnished a General Discharge Certificate.
12.  On 6 October 1972, the applicant was discharged from active duty and
was issued a General Discharge Certificate.  The applicant had served 4
years,
6 months, and 22 days of active service during that period, he had 2 days
of lost time, and he had a total of 14 years, 8 months, and 4 days of
active service.

13.  Item 11c (Reason and Authority) of the applicant's DD Form 214 (Armed
Forces Of The United States Report Of Transfer Or Discharge) contains the
entry, AR 600-200 SPN 21U (Army Regulation 600-200, Separation Program
Number 21U).  Separation Program Number 21U is defined in Army Regulation
635-5 (Separation Documents).  This regulation specified that the narrative
reason for SPN 21U was "Enlisted Personnel - Separation for failure to
demonstrate adequate potential for promotion advancement" and that the
authority for discharge under this separation program number was DA message
DAPE-MPP 242110Z September 1971.

14.  Item 41 (Awards and Decorations) of the applicant's DD Form 2
(Enlisted Qualification Record), provided by the applicant, contains the
entry "GCMDL (3Awd) 13Mar69" (Good Conduct Medal 3rd Award).

15.  There is no indication that the applicant applied to the Army
Discharge Review Board for an upgrade of his discharge within that board's
15-year statue of limitations.

16.  The Manual for Courts-Martial, United States, 1969, (Revised edition)
[MCM, 1969 (Rev.)], then in effect, contained a Table of Maximum
Punishments that prescribed the maximum punishment for the offenses listed.
 Section A of that table showed the maximum punishment that could have been
awarded by a special court-martial for the offense of missing movement
through neglect was a bad conduct discharge, forfeiture of all pay and
allowances, and six months confinement.

17.  Section B of the Table of Maximum Punishments stated that if an
enlisted member of other than the lowest enlisted grade was convicted by
court-martial the court could have, in its discretion, adjudged reduction
to any inferior grade in addition to the punishments otherwise authorized.

18.  Army Regulation 601-280 (Army Retention Program) governed bars to
reenlistment at the time in question.  Essentially, this regulation
provided that a Soldier could be barred from reenlisting based on specific
incidents of substandard performance.


19.  Army Regulation 600-200 (Enlisted Personnel Management System),
chapter 4, sets forth policy and prescribes procedures for denying
reenlistment under the QMP.  This program is based on the premise that
reenlistment is a privilege for those whose performance, conduct, attitude,
and potential for advancement meet Army standards.  It is designed to
enhance quality of the career enlisted force, selectively retain the best
qualified soldiers to 30 years of active duty, deny reenlistment to
nonprogressive and nonproductive soldiers, and encourage soldiers to
maintain their eligibility for further service.  DA (DAPE-MPP) Msg 242110Z,
September 1971, extended the provisions of the QMP to allow for the early
separation of soldiers in the grades of E-1 and E-2 who had failed to
demonstrate adequate potential for promotion advancement.

20.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations), currently in effect, sets forth the basic authority for the
separation of enlisted personnel.  Paragraph 13-2a(6) and 13-2d provides
for discharge of individuals if their potential for advancement or
leadership is unlikely and they have been convicted by court-martial but
not sentenced to a punitive discharge.  Paragraph 13-10 of this regulation
provides the service of Soldiers separated under this authority will be
characterized as honorable or under honorable conditions as warranted by
their military records.

21.  Army Regulation 635-200, then in effect, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

22.  Army Regulation 600-8-22 (Military Awards) states, in pertinent part
that the Good Conduct Medal is awarded to individuals who distinguish
themselves by their conduct, efficiency and fidelity during a qualifying
period of active duty enlisted service.  After 27 June 1950 to the present
time, the current standard for award of the Good Conduct Medal is 3 years
of qualifying service, but as little as one year is required for the first
award in those cases when the period of service ends with the termination
of Federal military service.  Although there is no automatic entitlement to
the Good Conduct Medal, disqualification must be justified.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his punishment was too harsh and that under
current standards he would not have received the same type of discharge.
2.  According to the MCM, 1969, (Rev.), in addition to the applicant's
reduction to private/pay grade E-1, he could have been sentenced to a bad
conduct discharge, forfeiture of all pay and allowances, and six months
confinement.  Therefore, the applicant's punishment was much less than what
he could have received.

3.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.  The records contain no
indication of procedural or other errors that would tend to jeopardize the
applicant's rights.

4.  Evidence shows that the applicant was properly and equitably discharged
in accordance with regulations in effect at the time.

5.  Under current standards the applicant would be processed for discharge
under Army Regulation 635-200, which essentially provides the same
procedures that the applicant was subject to in 1972.  Therefore, based on
the evidence of record, the applicant would be subject to discharge under
honorable conditions if he had been discharged today.

6.  A review of the applicant's record of service, which included a local
bar to reenlistment and a conviction by special court-martial, shows the
applicant did not meet the standards of acceptable conduct and performance
of duty for Army personnel.  The applicant's entire record of service was
considered.  There is no record or documentary evidence of acts of valor,
achievement, or service that would warrant special recognition.  Therefore,
the applicant is not entitled to an honorable discharge.

7.  Letters submitted by the applicant were reviewed, however, it is noted
that some of the letters were dated two years prior to the date of his
discharge.  Therefore, the letters are insufficiently mitigating to upgrade
a properly issued discharge.

8.  The applicant contends that he was generally a good service member and
that he had been a good citizen since discharge.  The applicant's complete
military records were not available to the Board and the applicant did not
submit any evidence of post-service conduct.  Therefore, there is
insufficient evidence to support his contentions.

9.  The applicant contends that his first sergeant was after him and that
he did not commit the offenses listed on his Certificate of Unsuitability
for Reenlistment. The evidence shows that when the applicant had the
opportunity to make a statement in conjunction with his processing for a
bar to reenlistment, he chose not to make a statement.  The applicant has
provided no evidence and there is no evidence of record that would show the
applicant's first sergeant was "after him."  Therefore, there is
insufficient evidence to support his contentions.

10.  According to the entry in Item 41 of the applicant's DD Form 2, the
applicant would have been eligible for a 4th award of the Army Good Conduct
Medal.  However, the applicant's records available to the Board are very
limited.  Portions of the records, including the DD Form 2 that would show
disciplinary actions and efficiency ratings, are not available.  Therefore,
there is insufficient evidence to make a determination for awarding the
applicant the 4th award of the Army Good Conduct Medal.

11.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 October 1972; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
5 October 1975.  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

___mkp__  ____sap_  ___slp __ 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.




                                  _Margaret K. Patterson_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040001756                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050208                                |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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