RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           31 March 2005
      DOCKET NUMBER:  AR20050004100


      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.  William D. Powers            |     |Chairperson          |
|     |Mr. Ronald J. Weaver              |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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 his discharge was race related.
He claims he was discriminated against because he wanted to go home for a
family emergency.

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 25 September 1973.  The application submitted in this case
is dated 28 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’s record shows that he enlisted in the Regular Army and
entered active duty on 23 June 1972.  He was trained in, awarded, and
served in military occupational specialty (MOS) 94B (Cook).

4.  The applicant’s Enlisted Qualification Record (DA Form 2)) confirms, in
Item 33 (Appointments & Reductions), that he was advanced to private/E-2
(PV2) on 23 October 1972, and that this was the highest rank he attained
while serving on active duty.  It also shows that he was reduced to
private/E-1 (PV1) on 7 August 1973, and that this was the rank he held on
the date of his discharge.
5.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.

6.  On 16 July 1973, a SPCM found the applicant guilty of violating Article
134 of the Uniform Code of Military Justice (UCMJ) by unlawfully carrying a
concealed weapon (pistol).  The resulting approved sentence included
confinement at hard labor for two months and a forfeiture of $204.00 per
month for four months.

7.  The applicant’s record is void of a separation packet containing the
specific facts and circumstances surrounding his discharge processing.  The
record does contain a separation document (DD Form 214) that confirms the
applicant was separated on 25 September 1973.  This document confirms the
applicant was separated under the provisions of chapter 13, Army Regulation
635-200, by reason of unfitness (frequent involvement in incidents of a
discreditable nature with civil and/or military authorities) with civil or
military authorities), and that he received an UD.

8.  The applicant’s DD Form 214 also shows that at the time of his
discharge, he had completed 1 year and 12 days of creditable active
military service and had accrued 81 days of time lost due to confinement.
The separation document also shows that during his active duty tenure, he
earned the National Defense Service Medal.  The applicant authenticated
this document with his signature in Item 32 (Signature of Person Being
Transferred or Discharged).

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

10.  Army Regulation 635-200, sets forth the basic authority for the
separation of enlisted personnel.  Chapter 13, in effect at the time,
provided for the separation of members for unfitness, for frequent
involvement in incidents of a discreditable nature with civil and/or
military authorities.  An UD was normally considered appropriate.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge was the result of racial
bias was carefully considered.  However, while every allegation of
prejudice is taken very seriously and no action that resulted from racial
discrimination would be allowed to stand, there is insufficient evidence to
support the applicant’s claim in this case.

2.  The applicant’s record is void of the specific facts and circumstances
surrounding the applicant’s discharge processing.  However, it does contain
a properly constituted DD Form 214 that identifies the reason and
characterization of the applicant’s discharge.  The applicant authenticated
this document with his signature on the date of his separation.  Therefore,
Government regularity in the discharge process is presumed.

3.  In the absence of any evidence of record or independent evidence to the
contrary, it is concluded that all requirements of law and regulation were
met and the rights of the applicant were fully protected throughout the
separation process. Further, the applicant’s discharge accurately reflects
his overall record of short and undistinguished service.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 September 1973.  Therefore, the
time
for him to file a request for correction of any error or injustice expired
on
24 September 1976.  However, he failed to 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

___WDP   ___RJW _  ___LGH _  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.




            ____William D. Powers______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040004100                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/03/31                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1973/09/23                              |
|DISCHARGE AUTHORITY     |AR 635-200 C13                          |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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