RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          7 July 2005
      DOCKET NUMBER:  AR20040007582


      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             |
|     |Ms. Rosa M. Chandler              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Eric N. Anderson              |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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 (UD) be upgraded
to an honorable discharge.

2.  The applicant states, in effect, that he completed at least 3 years of
military service and he does not believe the characterization of his
service represents his accomplishments.

3.  The applicant provides in support of his request a copy of his DD Form
214 (Report of Separation from Active Duty) issued on 23 April 1976.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 23 April 1976.  The application submitted in this case is dated
15 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 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.  On 11 August 1972, the applicant enlisted in the Regular Army for a
period of 4 years, training in military occupational specialty (MOS) 11B
(Light Weapons Infantryman) and the Army Cash Bonus Enlistment Option.  He
completed the training requirements and was award MOS 11B.  On 1 April
1974, he was assigned to Germany with duties in his MOS.

4.  In Germany, the applicant accepted nonjudicial punishment (NJP) under
Article 15, Uniform Code of Military Justice, on at least two occasions.
On 21 October 1974, NJP was imposed against the applicant for possession of
marijuana on 12 October 1974.  His punishment included reduction from E-4
to E-1, a forfeiture of $172.00 pay per month for 2 months (both suspended
for
6 months), and 45 days of extra duty and restriction.  For unknown reasons
on 11 November 1974, the suspended portion of the punishment was vacated.

5.  On an unknown date and for unknown reasons, the applicant was
restricted to the limits of Building 311, Graves Kaserne, Aschaffenburg,
Germany.  On 23 July 1975, NJP was imposed against him for breaking
restriction.  His punishment included forfeiture of $50 pay per month for 1
month and 45 days of extra duty.

6.  A complete separation packet is no longer contained in the applicant's
records.  However, it is known that the applicant's commander preferred
court-martial charges against him and that he requested discharge for the
good of the service in lieu of court-martial under the provisions of
chapter 10, Army Regulation (AR) 635-200.

7.  On 31 March 1976, a legal review determined the applicant's pending UD
under the provisions of chapter 10 was legally sufficient.

8.  On 22 April 1976, the applicant left Germany and returned to Fort Dix,
New Jersey for separation processing.

9.  The applicant's record does not contain all of the facts and
circumstances surrounding the discharge process.  However, his record does
contain a properly constituted DD Form 214 that was prepared at the time of
separation and authenticated by the applicant.  The DD Form 214 shows that,
on 23 April 1976, he was separated for the good of the service, under the
provisions of chapter 10, AR 635-200, in pay grade E1, with a UD.  He had
completed 3 years, 8 months and 13 days of active military service and he
had no recorded lost time.

10.  There is no evidence that the applicant petitioned the Army Discharge
Review Board for an upgrade of his discharge within that board's 15-year
statute of limitations.

11.  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.
At the time of the applicant's separation, a UD was appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The available records show the applicant was discharged under the
provisions of chapter 10, Army Regulation 635-200.  Although the facts and
circumstances surrounding the discharge process are missing, he would have
been charged with the commission of an offense(s) punishable under the UCMJ
with a punitive discharge.  He would have consulted with defense counsel
and signed a statement indicating that he had been advised he could receive
a UD and acknowledging the ramifications of receiving such a discharge.  He
would have voluntarily requested discharge to avoid trial by court-martial.
 In doing so, he would have admitted guilt to the stipulated offense(s)
under the UCMJ.  Administrative regularity is presumed in this process and
the applicant has provided no information that would indicate the contrary.

2.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 April 1976; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
22 April 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

__mhm___  __ena___  __cak___  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.



                                  Melvin H. Meyer
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040007582                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050707                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |19760423                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 10                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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