RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        30 AUGUST 2005
      DOCKET NUMBER:  AR20040009409


      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. Paul Smith                    |     |Chairperson          |
|     |Ms. Yolanda Maldonado             |     |Member               |
|     |Mr. Leonard 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 records be corrected by upgrading his
discharge.

2.  The applicant states that his age was a factor in his discharge, that
he was young and immature.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 10 September 1975.  The application submitted in this case is
dated 1 November 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 25 June 1975 for a period
of
3 years.  At the time of his enlistment he was 18 years old.

4.  On 18 August 1975, the applicant accepted nonjudicial punishment under
the provisions of Article 15, Uniform Code of Military Justice for being
derelict in the performance of this duties by failing to secure his M16
rifle.  His punishment was restriction, extra duty, 7 days confinement, and
a forfeiture of pay.

5.  On 22 August 1975, his commander preferred court-martial charges
against him for disobeying a lawful order from a superior commissioned
officer, and two specifications of breaking restriction.

6.  On 22 August 1975, a medical examination cleared the applicant for
separation.



7.  On 2 September 1975, after consulting with legal counsel, the applicant
voluntarily submitted a request for discharge, under the provisions of Army
Regulation 635-200, Chapter 10, for the good of the service in lieu of
trial by court-martial.  He acknowledged that he was guilty of the charges
against him, and submitted a statement in which he acknowledged that he was
unable to adjust to military life.

8.  On 4 September 1975, the appropriate separation authority approved his
discharge and directed his reduction to the lowest enlisted grade and the
issuance of an undesirable discharge.

9.  On 10 September 1975, the applicant was discharged under the provisions
of Army Regulation 635-200, Chapter 10, for the good of the service, in
lieu of trial by court-martial.  His DD Form 214 (Report of Separation from
Active Duty) indicates he had 2 months and 16 days of active duty.

10.  Army Regulation 635-200, then in effect, set forth the basic authority
for the separation of enlisted personnel.  Chapter 10 of that regulation
provided, in pertinent part, that a member who had committed an offense or
offenses for which the authorized punishment included a punitive discharge
could at any time after the charges had been preferred, submit a request
for discharge for the good of the service in lieu of trial by court-
martial.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions
of Army Regulation 635-200, Chapter 10, for the good of the service, to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.

2.  The applicant's contention that he was young and immature at the time
is not sufficiently mitigating to warrant relief.  The applicant was 18
years of age at the time of his enlistment.

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 10 September 1975; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
9 September 1978.  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

___PS __  ___YM __  ___LH  __  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.




                                  _______Paul Smith________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040009409                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050830                                |
|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.                      |                                        |


-----------------------
[pic]