RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        02 AUGUST 2005
      DOCKET NUMBER:  AR20040008493


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William Powers                |     |Chairperson          |
|     |Mr. Robert Duecaster              |     |Member               |
|     |Ms. Jeanette McCants              |     |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 records be corrected by upgrading his
discharge to honorable.

2.  The applicant states that he was unable to adapt to military service.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which
16 May 1977.  The application submitted in this case is dated 30 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 21 June 1976 for a period
of
3 years.  He completed basic combat training at Fort Dix, New Jersey, and
advanced individual training at Fort Benning, Georgia.

4.  Between 24 January 1977 and 16 February 1977, the applicant was
counseled on numerous occasions for drug abuse, missing formation, failure
to repair, and his appearance.

5.  On 8 February 1977, a mental status evaluation and a medical
examination cleared the applicant for separation.

6.  On 25 February 1977, the applicant accepted nonjudicial punishment
(NJP) under the provisions of Article 15, Uniform Code of Military Justice
(UCMJ) for the wrongful possession and use or marihuana.  His punishment
was extra duty, restriction and a forfeiture of pay.



7.  On 27 April 1977, he accepted NJP under the provisions of Article 15,
UCMJ for sleeping on post.  His punishment was reduction, extra duty,
restriction and a forfeiture of pay.

8.  On 28 April 1977, the applicant was notified by his commander that he
was initiating action to separate him under the provisions of Army
Regulation 635-200, Chapter 5.  The basis for his action was the
applicant’s poor attitude, his lack of self-discipline, his inability to
adapt emotionally to military life and his failure to demonstrate promotion
potential.

9.  On 28 April 1977, the applicant, after consulting with legal counsel,
acknowledged notification of his commander’s intent to discharge him from
military service.  The applicant consented to the discharge and elected not
to submit a statement in his own behalf.

10.  On 28 April 1977, the appropriate separation authority approved the
applicant’s discharge under the provisions of Army Regulation 635-200,
Chapter 5, and directed the issuance of a general discharge.

11.  On 16 May 1977, the applicant was discharged under the provisions of
Army Regulation 635-200, paragraph 5-37.  His DD Form 214 (Report of
Separation from Active Duty) indicates he had 10 months and 2 days of
active service and
5 days of lost time.

12.  Army Regulation 635-200, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  Paragraph 5-37 of the
regulation provided, in pertinent part, for the discharge of members who
fail to demonstrate promotion potential.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

2.  The actions by the Army in this case were proper, and there is no doubt
to be resolved in favor of the applicant.

3.  In order to justify correction of a military record the applicant must
show, 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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 May 1977; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
15 May 1980.  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

___WP__  ___RD __  ___JM  __  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.




                                  _____William Powers________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040008493                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050802                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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