RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 SEPTEMBER 2005
      DOCKET NUMBER:  AR20040010570


      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. James Hise                    |     |Chairperson          |
|     |Mr. Thomas O’Shaughnessy          |     |Member               |
|     |Mr. Patrick McGann                |     |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 discharge be upgraded.

2.  The applicant states that his discharge documentation should have
reverted to an honorable status 90 days after receiving an undesirable
discharge.  He notes that his request is made pursuant to the Privacy Act
of 5 United States Code (USC) section 552a, the Freedom of Information
Action of 5 USC 552 and to section 543 of Public Law 105-261 codified under
10 USC section 1556.  He states the forgoing laws support his request.

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 occurred on 14 July 1975.  The application submitted in this case is
dated
10 October 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.  Records available to the Board indicate the applicant enlisted and
entered active duty on 13 June 1973.  By February 1974 he had been promoted
to pay grade E-3.

4.  In October 1974, while assigned to a signal unit in Okinawa, the
applicant was punished under Article 15 of the UCMJ (Uniform Code of
Military Justice) for stealing a National Defense Service Medal ribbon from
the Okinawa Regional Exchange.

5.  On 20 March 1975 the applicant was discharged for the purpose of
immediate reenlistment.

6.  In May 1975 the applicant was punished twice under Article 15 of the
UCMJ, both times for failing to go to his appointed place of duty.
7.  On 2 June 1975 the applicant was punished under Article 15 of the UCMJ
for multiple occasions, between 27 May and 1 June 1975, of failing to go to
his appointed place of duty.  He was ultimately reduced to pay grade E-1 as
a result of the UCMJ actions.

8.  On 9 June 1975 charges were preferred against the applicant for
stealing a receiver and turntable from another Soldier, unlawfully
receiving a turntable, and hindering the apprehension of another Soldier by
driving that Soldier and the stolen receiver to a pawn shop in Okinawa
City, Okinawa.

9.  After charges were preferred, the applicant consulted with counsel and
voluntarily requested discharge for the good of the service in lieu of
trial by court-martial.  His request acknowledged he understood the nature
and consequences of the undesirable discharge which he might receive.  He
indicated he understood he could be denied some or all veterans' benefits
as a result of his discharge and that he may be deprived of rights and
benefits as a veteran under both Federal and State law.

10.  In a statement submitted on his own behalf the applicant talked about
his youth and death of his father.  He also discussed issues relating to
the 1974 shoplifting charge and one of the incidents of his failing to go
to his appointed place of duty.  He related that he never intended to make
money from illegal activities and realizes he should have turned the other
Soldier in when he saw that he had taken the receiver and turntable and
placed them in his car.  He asked that consideration be given to issuing
him a general discharge.

11.  In the processing of his voluntary request for separation, the
applicant's commander noted the applicant had been involved in a number of
acts of misconduct and recommended the applicant receive an undesirable
discharge.

12.  According to a 26 June 1975 message from the Director of Crime Records
at Fort Holabird, Maryland a complaint was filed against the applicant for
stealing a government check from another Soldier in the amount of $224.00
and subsequently forging that Soldier's signature and cashing the check.
There is no indication that disciplinary action was ever taken against the
applicant for this complaint.

13.  The applicant's request for discharge in lieu of trial by court-
martial was approved and on 14 July 1975 he was discharged under conditions
other than honorable and issued an undesirable discharge certificate.

14.  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.  A
discharge under other than honorable conditions is normally considered
appropriate.  However, at the time of the applicant's separation the
regulation provided for the issuance of an undesirable discharge.

15.  Army Regulation 635-200 also states that an honorable discharge is a
separation with honor.  The honorable characterization is appropriate when
the quality of the Soldier’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.

16.  The section of the various United States Codes, cited by the
applicant, apply to various issues including government agency rules,
opinions, orders, records, proceedings which are required to be made
available to the public, and maintaining records on individuals.  Section
543 of Public Law 105-261 as codified in Title 10, USC, section 1156
outlines the requirement to provide copies of exparte communication to an
applicant seeking corrective action by this Board. None of the elements
required that an undesirable discharge be upgraded to honorable 90 days
after it was issued.

17.  On 20 September 1976 the Army Discharge Review Board denied the
applicant's petition to upgrade his discharge.

18.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the
3 year limit on filing to the Army Board for Correction of Military Records
(ABCMR) should commence on the date of final action by the ADRB.  In
complying with this decision, the ABCMR has adopted the broader policy of
calculating the 3-year time limit from the date of exhaustion in any case
where a lower level administrative remedy is utilized.




DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, the Board concludes that
the applicant's administrative separation was accomplished in accordance
with applicable laws and regulations.  The characterization of the
discharge was appropriate considering the number of disciplinary actions in
the applicant's files and the charges which served as the basis for the
applicant to voluntarily request an administrative separation rather than
face a court-martial.

2.  The applicant’s contention that he was entitled to an honorable
discharge 90 days after receiving his undesirable discharge is not
supported by any evidence submitted by him, or contained in records
available to the Board.  The elements of Title 10, USC cited by the
applicant do not imply that an upgrade of a discharge is mandated or
supported by law.

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 request requirement.

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 20 September 1976.
 As a result, the time for the applicant to file a request for correction
or any error or injustice to this Board expired on 19 September 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

__JH____  __TO ___  ___PM __  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.




                                  ______ James Hise________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010570                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050920                                |
|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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