RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 September 2005
      DOCKET NUMBER:  AR20040010727


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Richard T. Dunbar             |     |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 undesirable discharge (UD) be upgraded
to a general discharge (GD) as originally issued.

2.  The applicant states that he was sent to Seoul, Korea, for a
psychiatric evaluation in March or April 1972.  He returned to his unit and
presented his commander with a general discharge.  The commander tore the
document up in his face.  He felt racial prejudice was involved in his
commander's attitude.

3.  The applicant provides an additional statement in support of his
request.  He states that his GD was destroyed and he was later given a UD
due to racial prejudice and tension.  His best friend was African-American
and they were constantly harassed by other African-Americans and Caucasians
to the point that they were in fear of their lives.  His best friend was
assaulted by other African-Americans and had stitches in his back from
razor cuts.  He and his best friend spoke to the battalion commander while
serving in Korea and were informed to go to through their unit commander
and chain of command.  He spoke with his commander who did nothing.   The
3rd platoon sergeant, an African-American, was very prejudiced and was of
no help.  The applicant spoke with the chaplain about his problem and he
assisted him in obtaining a GD, as did the Red Cross.

4.  He also states, that up until January 2004, that he did not have a
reason to ask that there be a correction to his military discharge.  In
January 2004, he was diagnosed with Hepatitis C and Stage 4 Cirrhosis and
the only chance for survival would be a liver transplant.  According to his
doctors, he had to have had the Hepatitis C for at least 30 plus years for
it to damage his liver to this extent.  He is trying to get medical
benefits to help with the cost of a liver transplant and the medications to
stop the rejection of the liver.  He concludes, by stating that he would
greatly appreciate the Board's consideration in changing his UD to a GD, as
it was originally issued, before his commander tore it up.

5.  He provides no documentation in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 26 July 1972, the date of his discharge.  The application
submitted in this case is dated 29 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’s military records show he entered active duty on 28 May
1971, as a light weapons infantryman (11B).  He served in Korea from
8 November 1971 to 26 July 1972.

4.  On 22 July 1971, he was punished under Article 15, Uniform Code of
Military Justice (UCMJ), for being absent without leave (AWOL) from 18 to
19 July 1971 (2 days).  His punishment consisted of a forfeiture of pay and
9 days restriction and extra duty.

5.  He was promoted to private first class (PFC/E-3) on 15 December 1971.

6.  Item 44 (Time Lost), of his DA Form 20 (Personnel Qualification
Record), shows that he was AWOL from 18 to 19 July (2 days) and was in
pretrial confinement from 10 to 25 July 1972 (16 days).

7.  The facts and circumstances pertaining to the applicant's discharge are
not present in the available records.  However, his DD Form 214 (Report of
Transfer or Discharge) shows that on 26 July 1972, he 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, in the pay grade of E-1.  He was
furnished an UD Certificate.  He had a total of 1 year, 1 month, and
11 days of creditable service and 18 days of lost time due to AWOL and
confinement.

8.  The applicant's records contain a copy of Headquarters, US Army
Personnel Center, Oakland, California, Special Orders Number 208, dated
26 July 1972.  These orders show, that while serving in Korea, the
applicant was issued a UD for the good of the service.

9.  There is no evidence that the applicant applied to the Army Discharge
Review Board (ADRB) for an upgrade of his discharge within its 15-year
statute of limitations.



10.  Army Regulation 635-200 sets forth the basic authority for 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.

11.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that
the applicant’s administrative separation was accomplished in compliance
with applicable regulations with no procedural errors, which would tend to
jeopardize his rights.

2.  The type of separation directed and the reasons for that separation
appear to have been appropriate considering all the available facts of the
case.

3.  It is apparent, from the authority for the applicant's discharge,
that charges were preferred against the applicant; however, these
documents are not available for review and the applicant failed to
provide this information to the Board.  There is no evidence, and the
applicant has provided no evidence, upon which to base an upgrade of his
UD.

4.  Careful consideration has been given to the applicant's contentions
that a GD was initially ordered; however, orders dated 26 July 1972, from
the USA Personnel Center, clearly show that a UD was approved, not a GD.

5.  The applicant's allegations pertinent to his psychiatric evaluation,
the presentation of a GD to his commander, which he torn up, that his
commander's attitude was racially prejudiced, and that racial prejudice and
tension contributed
to his UD are noted.  However, there is insufficient evidence in the
available records, and the applicant has provided none to substantiate that
the events occurred.

6.  The applicant's current diagnoses and health issues are acknowledged;
but, the Board does not upgrade discharges for former service members the
purpose of their accessing Department of Veterans Affairs (VA) benefits.

7.  There is no evidence in the available records to demonstrate that the
applicant was the victim of racial prejudice.

8.  There is no evidence in the applicant's records, and the applicant has
provided none, to show that he applied for an upgrade of his discharge to
the ADRB within its 15-year statute of limitations.

9.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 July 1972; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 25 July 1975.  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

___sk___  ___rtd___  ____bje__  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.




                                  __________Stanley Kelley______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010727                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050901                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19720726                                |
|DISCHARGE AUTHORITY     |AR 635-200, chapter 10                  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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