RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         23 June 2005
      DOCKET NUMBER:  AR20040006811


      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. David S. Griffin              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Robert L. Duecaster           |     |Chairperson          |
|     |Mr. Thomas A. Pagan               |     |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, in effect, that his undesirable discharge
characterized as under other than honorable conditions be upgraded to an
honorable discharge.

2.  The applicant states, in effect, that he was waiting for a medical
discharge due to his acute respiratory disease and that his discharge was
unjust.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation
from Active Duty) with an effective date of  22 June 1972.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 22 June 1972, the date of his discharge.  The application
submitted in this case is dated 20 July 2004 and was received on 3
September 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.  In the processing of this case the Army Board for Correction of
Military Records (ABCMR) was unable to obtain the applicant's military
service records.  The only records available to the Board were medical
records and the DD Form 214 provided by the applicant.  These records are
sufficient for the ABCMR to make a fair and impartial review of this case.


4.  The available records show that the applicant initially entered active
duty on
29 January 1971.

5.  The applicant's medical records contain a clinical record sheet, dated
6 April 1971,  that continued the applicant's profile for acute respiratory
disease.  The form did not show the previous profile.

6.  The applicant's DD Form 214 shows that he had 93 days time lost from
16 February 1972 - 19 May 1972.

7.  On 22 June 1972, the applicant was discharged with an undesirable
discharge for the good of the service under the provisions of Chapter 10,
Army Regulation 635-200.  He had served 1 year, 1 month and 21 days active
service and had 93 days time lost.

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

9.  Army Regulation 15-185 (Army Board for Correction of Military Records)
prescribes the policies and procedures for correction of military records
by the Secretary of the Army, acting through the ABCMR.  The regulation
provides that the ABCMR begins its consideration of each case with the
presumption of administrative regularity. The applicant has the burden of
proving an error or injustice by a preponderance of the evidence.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations), in effect at the time set forth the basic authority for the
administrative separation of enlisted personnel.  Chapter 10 of that
regulation provided, in pertinent part, that a member who had committed an
offense or offenses for which the authorized punishment included 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.  An undesirable discharge certificate will normally be furnished
an individual who is discharged for the good of the service.
11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation), in effect at the time, provided that no enlisted member may
be referred for physical disability processing when action has been or will
be taken to separate him or her for unfitness, except when the officer
exercising general court-martial jurisdiction determines that the
disability was the cause or substantial contributing cause of the
misconduct, or that circumstances warrant physical disability processing in
lieu of administrative processing.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable
conditions was unjust and should be upgraded to an honorable discharge.
He further contends that he was diagnosed with an acute respiratory disease
and was waiting for a medical discharge.

2.  The applicant's separation package and the violations that he was
charged with were not available for the Board to review.

3.  In order to be discharged under Chapter 10 of Army Regulation 635-200,
the applicant had to have been charged with an offense or offenses for
which the authorized punishment includes a punitive discharge.  He must
have voluntarily requested discharge, admitted his guilt, and acknowledged
that he could receive an under other than honorable conditions discharge.

4.  Any disability processing that may have been pending would have been
discontinued at the time the applicant was charged.

5.  In the absence of evidence to the contrary, it is determined that all
requirements of law and regulations were met and the rights of the
applicant were fully protected throughout the separation process.  Further,
it is determined that the type of discharge and the reason for separation
were appropriate considering all the facts of the case.

6.  In order to justify correction of a military record the applicant must,
or it must otherwise satisfactorily appear, that the record is in error or
unjust.  The applicant has failed to submit evidence that would satisfy
that requirement.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 June 1972, the date of his
discharge; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 21 June 1975.  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

__MJF __  __TAP __  __RLD __  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.




                                    __Robert L. Duecaster___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040006811                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050623                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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