RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 March 2005
      DOCKET NUMBER:  AR20040003522


      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. Michael J. Fowler             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Ms. Margaret K. Patterson         |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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 be upgraded to an
honorable discharge.

2.  The applicant states, in effect, that he did not receive proper legal
representation nor was there any evidence presented during his trial.

3.  The applicant further states that he was found to be totally disabled
due to a head injury in 1981.

4.  The applicant provides a DD Form 214 (Report of Separation from Active
Duty) and two letters of support. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 21 February 1974.  The application submitted in this case is
dated 22 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 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 enlisted in the Regular Army on 12 October 1972 and
successfully completed basic training and advanced individual training
(AIT).  He was awarded military occupational specialty 05F (Radio Teletype
Operator).

4.  On 8 February 1973, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for failure to be
at his prescribed place of duty.

5.  The court-martial charge sheet is not available.

6.  The applicant's request for discharge for the good of the service
packet is not available.

7.  The applicant's service personnel records do not contain the facts and
circumstances surrounding his separation process.  However, his DD Form 214
shows that he was discharged on 21 February 1974 under the provisions of
chapter 10 of Army Regulation 635-200 (Personnel Separations) by reason of
"For Good of the Service" with a characterization of under other than
honorable conditions.  The applicant completed 1 year, 4 months, and
10 days of creditable active service with no lost time.

8.  The applicant provides two letters of support from fellow associates
that stated they have known him since or prior to his service and which
show that he had a history of anti-social and psychotic behavior.  One
indicated the applicant had won two previous courts-martial but, based on
poor legal counsel, chose not to go through a third.

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.
At the time, an undesirable discharge was normally considered appropriate.

10.  Army Regulation 635-200, paragraph 3-7, 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.

11.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he did not receive proper legal
representation nor was there any evidence presented during his trial.
There is no evidence in the applicant's service records and the applicant
has provided no evidence that supports this contention.  It is noted that
one friend provided a letter in which he indicated the applicant had been
through two previous courts-martial.  It appears the applicant was not
unfamiliar with legal counsel.

2.  In the absence of evidence to the contrary, it is presumed that the
applicant's separation was accomplished in compliance with applicable
regulation and without procedural errors that would jeopardize his rights.
Therefore, it is concluded that the characterization of the applicant’s
discharge was proper and equitable.

3.   Records show the applicant should have discovered the alleged error or
injustice now under consideration on 21 February 1974; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 20 February 1977.  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

___FE___  __MKP__  ___CAK_  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.




                                  _____Mr. Fred Eichorn__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040003522                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |3 March 2005                            |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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