RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           15 March 2005
      DOCKET NUMBER:  AR20040003177


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Jonathon K. Rost              |     |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, an upgrade of his undesirable
discharge (UD).

2.  The applicant states, in effect, that he believes his discharge was
unjust and due to his being made an example by his unit commander, whom he
believes was not a very honorable officer.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 28 March 1975.  The application submitted in this case is
dated
18 June 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.  The applicant’s record shows that he initially enlisted in the Regular
Army and entered active duty on 28 December 1971.  On 12 December 1972, he
was honorably discharged for the purpose of immediate reenlistment and on
13 December 1972, he reenlisted for three years.  He was trained in and
awarded military occupational specialty (MOS) 11B (Infantryman) and the
highest rank he attained while serving on active duty was private first
class (PFC).

4.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.  His disciplinary
history includes his acceptance of nonjudicial punishment (NJP) under the
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on
three separate occasions.

5.  On 20 September 1973, the applicant accepted NJP for failing to go to
his prescribed place of duty (guard mount) at the appointed time.  His
punishment for this offense was a reduction to private two (PV2),
forfeiture of $100.00 and
7 days confinement.

6.  On 19 October 1973, the applicant accepted NJP for two specifications
of disobeying the lawful orders of a superior noncommissioned officer
(NCO).  His punishment for these offenses was reduction to private one
(PV1), suspended and seven days of extra duty.  Finally, on 10 December
1973, he accepted NJP for disobeying the lawful order of a superior
commissioned officer.  His punishment for this offense was reduction to PV1
(suspended), forfeiture of $100.00 and 14 days of extra duty.

7.  On 31 January 1975, a Charge Sheet (DD Form 458) was prepared
preferring two court-martial charges, containing five specifications,
against the applicant for violating Articles 90 and 91 of the UCMJ.  Charge
I contained three specifications of violating Article 90, by disobeying
lawful orders from superior commissioned officers.  Charge II contained two
specifications of violating Article 91, by disobeying the lawful order of
and being disrespectful to a senior NCO.

8.  On 26 February 1975, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
effects of an UD and of the rights available to him.  Subsequent to
receiving this legal counsel, the applicant voluntarily requested discharge
for the good of the service, in lieu of trial by court-martial.

9.  In his request for discharge, the applicant acknowledged he understood
that if his discharge request was approved, he could be deprived of many or
all Army benefits, that he could be ineligible for many or all benefits
administered by the Department of Veterans Affairs (VA), and that he could
be deprived of his rights and benefits as a veteran under both Federal and
State law.  He further indicated that he understood that he could encounter
substantial prejudice in civilian life by reason of an UD.

10.  On 18 March 1975, the separation authority approved the applicant’s
request for discharge and directed that he receive an UD.  On 28 March
1975, the applicant was discharged accordingly.  The separation document
(DD Form 214) he was issued confirms he completed a total of 2 years, 3
months and 16 days of active military service.  It further shows that
during his tenure on active duty, he earned the National Defense Service
Medal.

11.  There is no indication the applicant applied to the Army Discharge
Review Board for an upgrade of his discharge within its 15-year statute of
limitations.

12.  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 an UD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge was unjust and the result
of his being made an example of by his unit commander was carefully
considered.  However, there is insufficient evidence to support this claim.


2.  The evidence of record confirms that the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, the applicant voluntarily
requested discharge from the Army in lieu of trial by court-martial.  All
requirements of law and regulation were met, the rights of the applicant
were fully protected throughout the separation process and his discharge
accurately reflects his overall record service.

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

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 March 1975.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 27 March 1978. However, he 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

___RJW_  ___JTM _  ___JKR__  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.




            ____Raymond J. Wagner___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040003177                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/03/15                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1975/03/28                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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