RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        31 March 2005
      DOCKET NUMBER:  AR20040006821


      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. 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 that his discharge be upgraded from an
undesirable discharge to an honorable discharge.

2.  The applicant states, in effect, that he received inadequate counseling
during his separation proceeding.  He continues that he should have been
given a chance to rehabilitate and that his narrative reason for separation
is unfair.

3.  The applicant provides a DD Form 214 (Armed Forces of the United States
Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice that
occurred on
11 January 1971, the date of his separation from active duty.  The
application
submitted in this case is dated 30 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 limitation 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 25 July 1969 and
successfully completed basic training and advanced individual training.  He
was awarded military occupational specialty 57E (Laundryman).

4.  On 20 March 1970, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for being absent
from his appointed place of duty on 14 March 1970.

5.  On 5 May 1970, the applicant accepted NJP under Article 15, UCMJ for
being absent from his appointed place of duty on 1 May 1970.

6.  On 29 August 1970, the applicant accepted NJP under Article 15, UCMJ
for being disrespectful to a superior noncommissioned officer (NCO) and for
being out of the proper uniform.

7.  On 21 September 1970, the applicant accepted NJP under Article 15, UCMJ
for being absent without leave (AWOL) for the period 17 September 1970
through 19 September 1970.

8.  On 30 September 1970, the applicant accepted NJP under Article 15, UCMJ
for being AWOL for the period 26 September 1970 through 28 September 1970.

9.  A DD Form 458 (Charge Sheet), dated 7 October 1970, shows charges were
preferred against the applicant for disrespecting a senior noncommissioned
officer, failing to obey a lawful order, and four different instances of
failing to go to his prescribed place of duty.

10.  On 26 October 1970, the applicant accepted NJP under Article 15, UCMJ
for being AWOL for the period 19 October 1970 through 20 October 1970.

11.  On 30 October 1970, after consulting with counsel, the applicant
submitted a request for discharge for the good of the service under the
provisions of chapter 10 of Army Regulation 635-200 (Personnel
Separations).  The applicant indicated in his request that he understood he
could be discharged under other than honorable conditions and furnished an
Undesirable Discharge Certificate; that he may be deprived of many or all
Army benefits; that he may be ineligible for many or all benefits
administered by the Veterans Administration; and that he may be deprived of
his rights and benefits as a veteran under both Federal and State law.  He
also acknowledged that he may expect to encounter substantial prejudice in
civilian life because of an Under Other Than Honorable Conditions
Discharge.  The applicant did not submit statements in his behalf.

12.  On 3 November 1970, the applicant underwent a psychiatric examination
conducted by a Medical Corps psychiatrist who diagnosed the applicant with
character and behavior disorder.  The psychiatrist stated that the
applicant explained that he has no interest in remaining in the service and
would do whatever was necessary to leave it.  The psychiatrist further
stated the applicant had resentment towards authority and his lack of
interest made satisfactory adjustment to the military doubtful.

13.  The psychiatrist determined that the applicant's condition and
problems were not amendable to hospitalization, treatment, transfer,
disciplinary action, training, or reclassification to another type of duty
within the military and it was unlikely that efforts to rehabilitate or
develop the applicant into a satisfactory Soldier of the military would be
successful.  The psychiatrist stated that the applicant was mentally able
to distinguish right from wrong, to adhere to the right, and had the mental
capacity to understand and participate in board proceedings.  The
psychiatrist recommended that the applicant be administratively separated
from the military under the provision of Army Regulation 635-200.

14.  On 8 December 1970, the appropriate authority approved the applicant's
request for discharge for the good of the service.  He directed that the
applicant be issued an Undesirable Discharge Certificate.  On 11 January
1971, he was discharged from the service.  He completed 1 year, 5 months
and 21 days of creditable active service with 8 days of lost time due to
AWOL.  Item 26 of his DD Form 214 does not show lost time.

15.  On 5 December 1979, the Army Discharge Review Board (ADRB) considered
the applicant’s request to upgrade his discharge.  The ADRB unanimously
determined that the discharge was proper and equitable and that his
discharge was proper as under other than honorable conditions.

16.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of that regulation provides,
in pertinent part, that a member who has committed an offense or offenses
for which the authorized punishment includes 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.  A
discharge under other than honorable conditions is normally considered
appropriate.  However, at the time of the applicant's separation the
regulation provided for the issuance of an undesirable discharge.

17.  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.

18.  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.

19.  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 administrative remedy is
utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he received inadequate counseling during
his separation proceeding.  There is no evidence in the applicant's service
records and the applicant has provided no evidence that supports this
contention.  Records show that a competent counsel properly advised him and
that he fully understood the consequences of the discharge that he
requested.

2.  Records show that the psychiatrist that examined the applicant
determined that efforts to rehabilitate the applicant were unlikely to be
successful.

3.  In the absence of evidence to the contrary, it is presumed that the
applicant's separation was accomplished in compliance with applicable
regulation and without procedural errors that would jeopardize his rights.
Therefore, it is concluded that the characterization of the applicant’s
discharge was proper and equitable.

4.  The applicant's records show that he was received six Article 15s and
had three instances of 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 which are required for issuance of an honorable or
general discharge.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 5 December 1979, the date of the last
ADRB action; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 4 December 1982.  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

__ 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.




                                  _ Mr. William D. Powers _
                                              CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20040006821                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |31 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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