RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 August 2005
      DOCKET NUMBER:  AR20040008391


      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. Robert J. McGowan             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Ms. Deborah Jacobs                |     |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 his rank on his DD Form 214 (Certificate of
Release or Discharge From Active Duty) be corrected to show PVT/E-2.  He
also requests, in effect, reconsideration of a 1980 request to change his
military occupational specialty (MOS) to 36K (Tactical Wire Operations
Specialist).  This request was denied by the Army Board for Correction of
Military Records (ABCMR) on 28 October 1981.

2.  The applicant states he was an apprentice electrician prior to
enlistment and he enlisted for MOS 36K.  He states his rank was PVT/E-2,
not PVT/E-1.

3.  The applicant provides no documentation in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 1 November 1973.  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 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 as a PVT/E-1 in the Regular Army for 3 years and
training in MOS 36K on 15 December 1972.  He was a substandard Soldier
prone to disciplinary problems and never advanced in rank beyond PVT/E-1.

4.  The applicant completed Basic Combat Training (BCT) at Fort Polk,
Louisiana.  During his reassignment from Fort Polk to Fort Hood, Texas for
training in MOS 36K, he was absent without leave (AWOL) from 18-30 March
1973.  Reporting late, he was placed in training for MOS 63A (Mechanic
Maintenance Helper).

5.  The applicant had a series of disciplinary problems at Fort Hood.  He
was AWOL, confined by civil authorities, and confined by military
authorities.  He received nonjudicial punishment (NJP) under Article 15,
Uniform Code of Military Justice (UCMJ), and he was convicted by special
court-martial.
6.  On 5 September 1973, new court-martial charges were preferred against
the applicant for failure to repair, for AWOL, and for breaking
restriction.  The applicant consulted with legal counsel and requested
discharge for the good of the service in lieu of trial by court-martial
under the provisions of chapter 10, Army Regulation (AR) 635-200.  His
request was approved and he was separated with an undesirable discharge on
1 November 1973.

7.  The applicant's DD Form 214 shows he was separated as a PVT/E-1 and he
was trained in MOS 63A10.

8.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking
a discharge upgrade.  The ADRB, after considering his case on 2 January
1980, granted his request and upgraded his discharge to general under
honorable conditions.

9.  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
submit a request for discharge for the good of the service in lieu of trial
by court-martial.  The request may be submitted at any time after charges
have been preferred and must include the individual's admission of guilt.
Army policy states although an honorable or general discharge is
authorized, a discharge UOHC is normally considered appropriate.

10.  AR 15-185 sets forth procedures for processing requests for correction
of military records.  A recent court decision ordered the deletion of
paragraph 2-15b which applies to requests for reconsideration.  The effect
of this court decision now permits an applicant to request reconsideration
of an earlier ABCMR decision if the request is received within one year of
the ABCMR's original decision and it has not previously been reconsidered.
Such requests must provide new evidence or arguments that were not
considered at the time of the ABCMR's prior consideration.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's rank is correct; there is no error or injustice.  The
evidence of record shows he was charged with offenses punishable under the
UCMJ by a punitive discharge .  The evidence also shows he consulted with
legal counsel and voluntarily requested, in writing, discharge under the
provisions of chapter
10, AR 635-200 in lieu of trial by court-martial.  In this request, he
admitted guilt to the offense, or a lesser included offense.  The
separation authority approved the discharge with a UOTHC discharge and the
applicant was separated as a PVT/E-1, the only rank he ever held.

2.  The applicant's request to have his MOS changed to 36K on his DD Form
214 was previously considered and denied by the ABCMR on 28 October 1981.
The applicant's current request was not received within one year of the
ABCMR's original decision.  Therefore, it does not meet the criteria for
reconsideration and is denied review.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 November 1973; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 31 October 1976.  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

__js____  __dj____  __mjf___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented does not demonstrate the
existence of a probable error or injustice.  Therefore, the Board
determined 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 there is no evidence provided
which shows 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.



                                        John Slone
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040008391                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050811                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |100.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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