RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 May 2005
      DOCKET NUMBER:  AR20040003594


      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. Prevolia Harper               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Ms. Diane J. Armstrong            |     |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 a
fully honorable discharge.

2.  The applicant provides no statements in support his application.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge); 3 letters of support;
copies of
DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of
Military Justice (UCMJ); Headquarters, United States Army Europe and
Seventh Army Special Orders Number 094; and an excerpt from a newspaper
article titled "3/64th's A55 Tops in USAREUR."

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 15 August 1973, the date of his separation from active service.
 The application submitted in this case is dated 23 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 enlisted in the Army on 20 September 1971 for a period of

3 years.  He completed basic and advanced individual training and was
awarded the military occupational specialty 11E10 (Armor Crewman).  He was
discharged on 15 August 1973 under other than honorable conditions.

4.  On 1 June 1972, the applicant, while serving in Germany with the 3rd
Battalion,
64th Armor, 3rd Infantry Division, received nonjudicial punishment (NJP)
under Article 15, UCMJ for violation of a lawful general regulation by
participating in a public demonstration in a foreign country.  His
punishment for this offense consisted of extra duty for 45 days and
restriction to the company area, mess hall, place of worship and duty.  His
restriction was suspended for 60 days.



5.  On 24 February 1973, the applicant received NJP under Article 15, UCMJ
for using disrespectful language towards a superior noncommissioned officer
(NCO). His punishment consisted of reduction to private/pay grade E-2 and
forfeiture of $50 per month for one month.

6.  On 6 March 1973, the applicant appealed the Article 15 and requested a
personal appearance before his commander.  He stated that he did not use
disrespectful language and disputed the NCO's account of the incident.

7.  On 19 March 1973, the Staff Judge Advocate in Schweinfurt, Germany
reviewed the applicant's appeal and determined that the proceedings were
conducted in accordance with law and regulations and that the punishment
imposed was not unjust or disproportionate to the offenses committed.

8.  On 29 March 1973, the applicant's commander suspended his punishment of
reduction to private/pay grade E-2 for a period of 90 days based on the
applicant's appeal of his punishment imposed on 19 March 1973.

9.  On 11 April 1973, the applicant received NJP under Article 15, UCMJ,
for failure to obey a lawful order and failure to report to the battalion
headquarters for detail.  His punishment consisted of forfeiture of $75 per
month for one month, (with forfeiture of $35 suspended for a period of 90
days), and reduction to the grade private/pay grade E-2.

10.  On 2 May 1973, the applicant received NJP under Article 15, UCMJ, for
failure to obey a lawful order issued by a superior NCO to report to
quarters for remedial physical training.  The applicant was also charged
with using disrespectful language towards an NCO.  His punishment consisted
of reduction to private/pay grade E-1, forfeiture of $75 per month for one
month, restriction for 14 days, and extra duty for 14 days.

11.  On 6 July 1973, the applicant underwent a mental evaluation by a
medical physician that determined that he could distinguish right from
wrong and that he possessed sufficient mental capacity to understand and
participate in administrative or judicial proceedings.

12.  On 11 July 1973, the applicant's unit commander imposed a bar to
reenlistment.  He cited the applicant's poor attitude, difficulty in
accepting authority, 3 Article 15's for disobedience and disrespect as his
reasoning for initiating the bar to reenlistment.



13.  On 18 July 1973, the applicant’s commander signed an elimination
packet and a waiver of rehabilitative transfer on the applicant for
separation under the provisions of Army Regulation 635-200 (Personnel
Separations), chapter 13 for unfitness.  The reasons cited by the commander
was the applicant’s poor conduct throughout his assignment, lack of
initiative, and extreme apathy in his training and his duties.

14.  The commander also noted that the applicant continually failed
counseling.  The commander further stated that although the applicant was
an excellent leader, his performance in other duties as well as his
appearance and attitude had been substandard.

15.  On 18 July 1973, the applicant was advised by consulting counsel of
the basis for the contemplated separation action.  The applicant was
advised of the impact of the discharge action.  The applicant signed a
statement indicating that he was advised he was being recommended for
discharge under the provisions of Army Regulation 635-200, Chapter 13.  The
applicant declined counsel, waived his right to be heard by a board of
officers, and declined to submit a statement on his own behalf.

16.  On 3 August 1973, the appropriate authority approved the elimination
packet and waiver of rehabilitative transfer recommendation and directed
the applicant receive an undesirable discharge under the provisions of
Chapter 13 of Army Regulation 635-200 for unfitness.  On 15 August 1973,
the applicant separated from the service after completing 1 year, 10
months, and 26 days of creditable active service.

17.  The applicant submitted two letters of support from retired service
members. The service members stated that the applicant was a member of the
Benevolent and Protective Order of Elks and that he was a dependable,
knowledgeable,
hard-working individual and carried the military principle that you lead by
example.  They also stated that the applicant supported many Veteran
programs and was a deserving individual willing to help others.

18.  The applicant submitted an undated letter of support from his mother.
The applicant's mother stated that in 1973 her family situation was not
ideal and she and three young children were on their own after a marital
separation.  She further stated that her son was impatient and immature and
that her family situation prompted the applicant's unwise behavior in which
he regrets now as a mature responsible person of integrity.



19.  The applicant applied to the Army Discharge Review Board (ADRB) to
upgrade his discharge.  On 24 February 1982, the ADRB reviewed and
unanimously denied the applicant's request for an upgrade.  The ADRB
determined that the applicant's discharge was proper and equitable and that
the discharge was properly characterized as under other than honorable
conditions.

20.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 13, then in effect, contained
the policy and outlined the procedures for separating individuals for
unfitness when they were involved in frequent incidents of a discreditable
nature with civil or military authorities and it was established that
further efforts at rehabilitation were unlikely to succeed or they are not
amenable to rehabilitation measures.

21.  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.

22.  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.

23.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (Army Regulation 15-185,
paragraph 2-8), effectively shortens that filing period, has determined
that the 3 year limit on filing to the ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the ABCMR has
adopted the broader policy of calculating the 3-year time limit from the
date of exhaustion in any case where a lower level.






DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was not knowledgeable in dealing with
family problems and his adolescent behavior resulted in Article 15s.  There
is no evidence and the applicant has provided no evidence to show that he
sought assistance from his chain of command in dealing with family issues.
Therefore, there is no basis for this argument.

2.  The applicant contends that immaturity was the cause of the Article 15s
he received.  However, records show that the applicant was 18 years old at
the time his active service began and 21 years, 8 months at the time of his
discharge.
He was aware of the standards of conduct for Soldiers in the Army.
Therefore, his contention that he was young at the time of his offenses
does not mitigate his indiscipline.

3.  The evidence of record shows that the applicant's counsel informed him
that he was being separated from the service for unfitness and informed him
of the basis for that action.  Records further show that the applicant
waived his right to be heard by a board of officers and declined to submit
a statement on his own behalf.

4.  Lacking evidence to the contrary, it is concluded that all requirements
of law and regulation were met and that the rights of the applicant were
fully protected throughout the separation process.  Therefore, it is
concluded that the applicant’s discharge was proper and equitable.

5.  The applicant's records show that he received four Article 15s, a bar
to reenlistment, and numerous counseling sessions.  He completed only
1 year,
10 months, and 26 days of his 3-year enlistment.  Based on these facts, the
applicant’s service clearly did not meet the standards of acceptable
conduct and performance of duty for Army personnel that are required for
issuance of an honorable or general discharge.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 24 February 1982; the date of the ADRB
action; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 23 February 1985.  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

__slp___  __phm___  __dja___  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.



                                        Shirley L. Powell
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040003594                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050503                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19730815                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chap 13                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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