RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 March 2005
      DOCKET NUMBER:  AR20040004367


      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. John E. Denning               |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 was never given a reason why
he was discharged from the service.  He continues that he was a heavy
drinker at the time and got into trouble.  He concludes that his first
sergeant rode him and eventually put him out of the service.

3.  The applicant provides a DD Form 214 (Report of Separation From Active
Duty) and a DD Form 293 (Application for the Review of Discharge or
Dismissal from the Armed Forces of the United States).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 29 January 1976.  The application submitted in this case is
dated 13 July 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 11 June 1974 and
successfully completed basic training and advanced individual training.  He
was awarded military occupational specialty 36K (Field Wireman).

4.  On 23 January 1975, 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.  On 6 June 1975, the applicant accepted NJP under Article 15, UCMJ for
being absent without leave (AWOL) for the period 28 May 1975 through 5 June
1975.

6.  On 6 June 1975, the applicant accepted NJP under Article 15, UCMJ for
being AWOL for the period 3 November 1975 through 9 November 1975.
7.  A DA Form 4126-R (Bar to Enlistment/Reenlistment Certificate), dated
18 November 1975, shows the applicant was barred from reenlistment for
unsatisfactory conduct and efficiency.  He did not desire to submit a
statement on his own behalf.

8.  On 8 December 1975, the applicant accepted NJP under Article 15, UCMJ
for leaving his appointed place of duty.

9.  On 29 December 1975, 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 failure to respond to numerous counseling, his slovenly
appearance, his negative attitude, unsatisfactory duty performance, twice
going AWOL, and repeated tardiness that resulted in Article 15 disciplinary
action.

10.  On 29 December 1975, 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.

11.  On 20 January 1976, 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 29 January 1976,
the applicant separated from the service after completing 1 year, 7 months,
and 22 days of creditable active service and had 14 days of lost time.

12.  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.

13.  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.

14.  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 evidence of record shows that the applicant's consulting 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 declined counsel, waived his right to be heard by a board of
officers, and declined to submit a statement on his own behalf.

2.  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.

3.  The applicant's records show that he received four Article 15s and had
two instances of AWOL.  The applicant had completed only 1 year, 7 months,
and 22 days with a total of 14 days of lost time due to AWOL.  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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 29 January 1976; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 28 January 1979.  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

__JRS___  __ JED__  __ MJF__  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. Joe R. Schroeder___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040004367                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |17 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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