RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          12 April 2005
      DOCKET NUMBER:  AR20040002734


      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 Slone                    |     |Chairperson          |
|     |Ms. Shirley L. Powell             |     |Member               |
|     |Mr. Curtis Greenway               |     |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 that of a general discharge under honorable conditions.

2.  The applicant states, in effect, that he believes he was the victim of
a sexual predator, and the experience was more traumatic than he realized.
The applicant states that upon his arrival in Germany, a sergeant took
interest in him and stated a desire to mentor him.  Shortly thereafter, the
sergeant took him into a private area and he was given a glass of beverage
that incapacitated him and he fell asleep.  The sergeant was performing a
sexual act with him when he woke up.  He was only 17 years of age and he
was afraid to tell anyone.  The sergeant soon realized that he was not
interested in him and he moved on to another Soldier.  The sergeant was
never punished for the offense against him.  In fact, the sergeant was
promoted and moved to a civilian environment.  The applicant believes the
incident affected his attitude and self-esteem much more than he realized
at the time.  The applicant also states that he takes full responsibility
for his alcoholism.  He states that he was a good Soldier when he was on
duty; all of his indiscretions took place when he was off duty.  However,
he realizes he could have been a better Soldier. Additionally, the
applicant states that he has been sober for the past 5 years.

3.  The applicant provides in support of his request:

      a.  DD Form 214 (Report of Separation from Active Duty).

      b.  Social Security Statement.

      c.  Personal Reference Statements, dated 26 May 2004 and 1 June 2004,
that were written by a former employer, and an instructor at Antelope
Valley College, Palm Desert, California.  The statements indicate the
applicant is competent, hardworking, and that he demonstrates a
professional attitude.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
7 November 1975.  The application submitted in this case is dated 27 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
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 6 December 1973, the applicant’s mother signed a declaration of
parental consent for him to enlist in the military.  On 20 December 1973,
at age 17, the applicant enlisted in the Regular Army for a period of 3
years and the Army Europe enlistment option.  He completed the training
requirements and he was awarded military occupational specialty (MOS) 11B
(Infantryman).  On 15 May 1974, he was assigned to Germany.

4.  On 6 February 1975, nonjudicial punishment (NJP) was imposed against
the applicant under the provisions of Article 15, Uniform Code of Military
Justice (UCMJ) for being drunk and disorderly on 12 January 1975.  His
punishment included the reduction from pay grade E-3 to pay grade E-2
(suspended for
60 days) and 7 days of extra duty.  On 11 March 1975, the suspended portion
of the applicant's punishment was vacated.

5.  On 18 March 1975, NJP was imposed against the applicant for being drunk
and disorderly in quarters; assaulting a sergeant by pushing him against a
wall locker; and for being disrespectful in language towards a sergeant on
8 March 1975.  His punishment included a forfeiture of $53.00 pay for 1
month, 14 days of extra duty and reduction from pay grade E-2 to pay grade
E-1 (suspended for
60 days).

6.  On 29 July 1975, the applicant was convicted by a summary court-martial
of being in an absent without leave (AWOL) status from 26 May to 13 June
1975.  He was sentenced to confinement at hard labor for 45 days and a
forfeiture of $22.00 pay for 1 month.

7.  Sworn statements that are contained in the available record indicate
that
on 22 August 1975, the applicant was involved in a fight with another
Soldier.  The applicant threw the Soldier into a window and broke it.  The
Soldier's shoulder was injured by the broken glass.  Both Soldiers had
consumed alcohol prior to the fight.

8.  A DA Form 268, (Report for Suspension of Favorable Personnel Actions),
dated 28 August 1975, shows an investigation was in progress and the
applicant was pending a special court-martial authorized to adjudicate a
bad conduct discharge for offenses under Article 91 insubordinate conduct
toward an officer, or a noncommissioned officer, and Article 134, conduct
prejudicial to good order and discipline in the Armed Forces.
9.  The applicant’s record does not contain all of the facts and
circumstances surrounding the discharge process.  However, the available
record does contain a document that is authenticated by the applicant which
shows that, on
29 September 1975, he consulted with legal counsel and requested discharge
for the good of the service in lieu of trial by court-martial under the
provisions of chapter 10, Army Regulation 635-200.  He was advised that he
could receive a UD and he acknowledged that he understood the ramifications
of receiving a UD. He also declined to submit a statement in his own
behalf.

10.  On 2 October 1975, the applicant's commander recommended approval of
his request for discharge under the provisions of chapter 10, Army
Regulation
635-200, for the good of the service with a UD.  On 4 October 1975, the
intermediate commander recommended approval with a UD.

11.  On 10 October 1975, the separation authority approved the
recommendation and directed that the applicant be separated with a UD.

12.  On 7 November 1975, the applicant was separated with a UD under the
provisions of chapter 10, Army Regulation 635-200.  He had 1 year, 10
months and 1 day of creditable active military service and he had 18 days
of lost time, due to being AWOL.

13.  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.

14.  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.  The available records show the applicant was discharged under the
provisions of chapter 10, Army Regulation 635-200, for the good of the
service.  Some of the facts and circumstances surrounding the discharge
process are missing.  However, the Board presumes regularity.  Further, the
applicant's voluntary request for separation under the provisions of Army
Regulation
635-200, chapter 10, to avoid trial by court-martial was administratively
correct and in conformance with applicable regulations.  The character of
the discharge is commensurate with the applicant's overall record of
military service.

2.  The applicant’s conduct was inconsistent with the Army’s standards for
acceptable personal conduct and his overall quality of service was not so
meritorious as to warrant an upgrade of his discharge.

3.  The available evidence does not show the applicant was ever sexually
abused or mistreated by anyone, in his chain of command.  The applicant has
provided no evidence to such a claim.

4.  The applicant met entrance qualification standards to include age with
a waiver.  There is no evidence available that indicates he was any less
mature than other soldiers of the same age who successfully completed their
military service obligation.

5.  The Board congratulates the applicant for being clean and sober for the
past
5 years, however, if he knowingly violated the Army's alcohol abuse policy,
he risked his career and diminished the quality of his service below that
meriting an honorable discharge.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 7 November 1975; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
6 November 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

__JS____  __SLP___  __CG____  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 Slone
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040002734                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050412                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |19751107                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 10                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.7000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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