RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 May 2005
      DOCKET NUMBER:  AR20040008300


      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. Raymond J. Wagner             |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Ms. Laverne M. Douglas            |     |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 general under honorable conditions
discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that his record of absence without
leave (AWOL) indicated a minor offense and that his DD Form 214 (Report of
Separation from Active Duty) shows that his AWOL was corrected by remaining
in the service for an additional 29 days.  He concludes that he never read
his DD Form 214 until he applied for a civil service position and that he
received a letter back regarding its status.

3.  The applicant provides a DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 26 July 1977.  The application submitted in this case is dated
27 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.  The applicant enlisted in the Regular Army on 28 June 1974 for a three
year term of service.  He successfully completed basic training and
advanced individual training.  He was awarded military occupational
specialty 11B (Light Weapons Infantryman).

4.  On 7 August 1975, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for being absent
without leave (AWOL) for the period 19 May 1975 through 17 June 1975.

5.  A DA Form 2166-5 (Enlisted Evaluation Report (EER)), period of report
from January 1975 through November 1975, dated 9 December 1975, shows in
Item E8 (Duty Performance Traits -- Personal behavior sets a good example
for others.  (High standards of personal conduct)) that the applicant's
rater and endorser rated this area "1," needs some improvement (the highest
rating being "5" and the lowest rating being "0.")

6.  On 17 December 1975, the applicant was convicted by a special court-
martial for striking a fellow Soldier on the face.  He was sentenced to
restriction to the unit area for 45 days, to be reduced to private/pay
grade E-1, and to forfeit $100.00 for one month.

7.  On 11 May 1976, the applicant accepted NJP under Article 15, UCMJ for
failure to be at his appointed place of duty.

8.  On 9 July 1976, the applicant accepted NJP under Article 15, UCMJ for
making a false statement to a senior officer.

9.  The applicant's DA Form 20 (Enlisted Qualification Record) is not
available.

10.  On 26 July 1977, the applicant was separated from the Regular Army
after completing his three year term of service and was transferred to the
United States Army Reserve Control Group.  His DD Form 214 shows that he
was discharged under the provisions of chapter 2 of Army Regulation 635-200
(Personnel Separations) by reason of "expiration of term of service" with a
characterization of service of general under honorable conditions.  He
completed 3 years of creditable active service with 29 days of lost time
due to AWOL.

11.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 1 of the regulation at that time
provided, in pertinent part, that an honorable discharge was a separation
with honor.  Issuance of an honorable discharge would be conditioned upon
proper military behavior and proficient performance of duty during the
Soldier's current enlistment of current period of service with due
consideration for the Soldier's age, length of service, grade, and general
aptitude.  Where Soldiers had served faithfully and performed to the best
of their ability and had been cooperative and conscientious in doing their
assigned tasks, they could be furnished an honorable discharge.  Where
there were infractions of discipline, the extent thereof should be
considered, as well as the seriousness of the offense(s).  A Soldier would
not necessarily be denied an honorable discharge solely by reasons of a
specific number of convictions by courts-martial or actions under Article
15 of the UCMJ.  It was the pattern of behavior and not the isolated
instances which should be considered the governing factor in determination
of character of service to be awarded.

12.  A Soldier's service would be characterized as honorable by the
commanding officer authorized to take such action or higher authority when
a member was eligible for or subject to separation and it was determined
that the Soldier merited an honorable discharge under the following
standards:  (a) Had conduct ratings of at least "Good."  (b) Had efficiency
ratings of at least "Fair."  (c) Had not been convicted by a general court-
martial.  (d) Had not been convicted more than once by a special court-
martial.

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.

DISCUSSION AND CONCLUSIONS:

1.  The Board acknowledges that an honorable discharge would normally have
been issued if four conditions were met.  The evidence of records shows the
applicant met two of those conditions -- for not being convicted by a
general court-martial or convicted by more than one special court-martial.
However, the other two conditions -- that a Soldier must have had a conduct
rating of at least "Good" and an efficiency rating of at least "Fair" --
cannot be verified because his DA Form 20 is not available.  The Board
notes that his EER for the period January 1975 through November 1975 gave
him a 1 (needs some improvement) rating in personal behavior that sets a
good example for others.  In the absence of evidence to the contrary, it is
presumed that the applicant's EER was a reliable indicator and the
commander would have rated his conduct as less than good at least for that
period of time.  Therefore, it is presumed he was properly given a
character of service of general under honorable condition discharge based
on a less than "good" conduct rating.

2.  As to the merits of this case, the Board notes the applicant had three
Article 15s and one conviction by a special court-martial.  Although he
made up his 29 days of lost time and served his full three year enlistment,
it does not appear that the quality of his service was sufficiently
meritorious to warrant granting an honorable discharge.

3.  Lacking evidence to the contrary, it is presumed 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.  As a
result, his discharge accurately reflects his overall record of service.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 July 1977; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 25 July 1980.  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

__RJW__  __BJE___  __LMD__  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.




                                  ___ Raymond J. Wagner _
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040008300                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |19 May 2005                             |
|TYPE OF DISCHARGE       |GD                                      |
|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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