RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           10 May 2005
      DOCKET NUMBER:  AR20040005497


      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:

|     |Ms. Jennifer L. Prater            |     |Chairperson          |
|     |Mr. Bernard P. Ingold             |     |Member               |
|     |Mr. Antonio Uribe                 |     |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, that his undesirable discharge (UD)
be upgraded.

2.  The applicant states, in effect, that his discharge was thrust at him
under duress.  He further claims that everything happened so fast, he had
no time to consider alternatives.

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 1 September 1971.  The application submitted in this case
is dated
4 August 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 18 April 1969.  He was trained in, awarded and
served in military occupational specialty (MOS) 74D (Automated Data
Processing Machine Operator) 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.  The record reveals
a disciplinary history that includes his acceptance of nonjudicial
punishment (NJP) under the provisions of Article 15 of the Uniform Code of
Military Justice (UCMJ) on the following five separate occasions for the
offenses indicated:  12 May 1969, for being absent without leave (AWOL); 15
February 1970, for failure to go to his appointed place of duty; 14 August
1970, for being derelict in the performance of his duty; 11 August 1971,
for failing to come to attention and render due respect during Retreat; and
21 January 1971, for being absent from his place of duty.

5.  On 10 November 1969, a special court-martial (SPCM) convicted the
applicant of being AWOL from on or about 11 August through on or about
22 October 1969.  The resultant sentence included confinement at hard labor
for four months and forfeiture of $50.00 per month for four months.

6.  On 26 July 1971, the unit commander advised the applicant that he was
recommending the applicant’s discharge under the provisions of Army
Regulation 635-212, by reason of unfitness.

7.  The applicant consulted with legal counsel and after being advised of
the basis for the contemplated separation, its effects and the rights
available to him, he waived his right to consideration of his case by a
board of officers, personal appearance before a board of officers and his
right to counsel.  He further elected not to make a statement in his own
behalf.

8.  On 24 August 1971, the separation authority directed the applicant’s
separation under the provisions of Army Regulation 635-212 and that he
receive an UD.  On 1 September 1971, the applicant was discharged
accordingly.  The separation document (DD Form 214) issued to him at the
time, confirms the applicant completed a total of 1 year, 11 months and 24
days of creditable active military service and that he accrued a total of
178 days of time lost due to AWOL and confinement.

9.  On 15 March 1977, after finding his discharge was proper and equitable,
the Army Discharge Review Board (ADRB) denied the applicant’s request for
an upgrade of his discharge.

10.  Army Regulation 635-212, in effect at the time, set forth the basic
authority, established the policy, and prescribed the procedures for
separating members for unfitness.  An undesirable discharge was normally
considered appropriate for members separating under these provisions.

11.  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 Board has
adopted the broader policy of calculating the 3-year time limit from the
date of exhaustion in any case where a lower level administrative remedy is
utilized.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was under duress and was not
provided time to consider alternatives at the time of his discharge was
carefully considered.  However, there is insufficient evidence to support
this claim.

2.  The evidence of record confirms the applicant was notified of the
contemplated separation action by his unit commander and that he consulted
legal counsel.  It further shows that after being advised of the basis for
the contemplated separation action and its possible effects, he voluntarily
elected to waive his right to have his case considered by a board of
officers and he elected not to submit a rebuttal statement in his own
behalf.

3.  The record further confirms that all requirements of law and regulation
were met and the applicant’s rights were fully protected throughout the
separation process.  Finally, the record shows applicant’s discharge
accurately reflects his overall record of 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 exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 15 March 1977.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 14 March 1980.  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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___BPI__  ___AU __  ___JLP__  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.




            ____Jennifer L. Prater______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040005497                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/05/10                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1971/09/01                              |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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