RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 September 2005
      DOCKET NUMBER:  AR20040011015


      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. James E. Anderholm            |     |Chairperson          |
|     |Mr. Bernard P. Ingold             |     |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, in effect, a discharge upgrade.

2.  The applicant states he was wrongfully discharged.  He states his
mother was dying and the Army would not let him go home.

3.  The applicant provides no documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 1 November 1976.  The application submitted in this case
is dated 21 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 1973.  He was
awarded military occupational specialty (MOS) 64C (Motor Transport
Operator).  He reenlisted on 27 March 1975.

4.  The applicant developed disciplinary problems.  He was repeatedly
counseled and attempts were made to correct his behavior by giving him time
off from his military duties, and through the imposition of nonjudicial
punishment (NJP) under Article 15, Uniform Code of Military Justice.  All
attempts to correct the applicant's behavior failed.

5.  On 5 October 1976, the applicant was notified that he was being
considered for separation under the provisions of chapter 13, Army
Regulation (AR) 635-200 for unsuitability.  He acknowledged notification on
5 October 1976.

6.  On 6 October 1976, the applicant consulted with legal counsel.  The
nature of the discharge proceedings against him was explained and he was
informed that he could receive a General Discharge (GD).  His rights were
explained and he waived his rights.
7.  On 18 October 1976, the approving authority approved the separation
action and directed the applicant be discharged with a GD.  He was
separated under the provisions of chapter 13, AR 635-200 for unsuitability
with a GD on 1 November 1976.  He had a total of 3 years, 4 months, and 8
days of creditable service.

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

9.  Army Regulation 635-200 sets forth the policy and prescribes the
procedures for administrative separation of enlisted personnel.  Chapter
13, in effect at the time, provided for the separation of individuals whose
record evidenced apathy (lack of appropriate interest), defective
attitudes, and an inability to expend effort constructively.  When
separation for unsuitability was warranted, an honorable or general
discharge was issued as determined by the separation authority based upon
the individual’s entire record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant developed a record of minor disciplinary problems which
rendered him unsuitable for retention.  He was separated after numerous
attempts by his chain of command to correct his behavior.

2.  On 5 October 1976, the applicant’s commander recommended he be
discharged for unsuitability under the provisions of Army Regulation 635-
200, chapter 13.  The applicant consulted with counsel and waived his
rights.  He acknowledged that he might expect to encounter substantial
prejudice in civilian life if he were issued a GD.  He declined to submit a
statement in his own behalf.

3.  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.  The type of discharge
directed and the reason for discharge were appropriate considering all the
facts of the case.

4.  The applicant has not shown that his mother passed away while he was on
active duty, or that he was ever denied the opportunity to visit her.
Documents in his personnel file indicate his chain of command gave him
"time off from duty" to take care of family problems.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 November 1976; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 31 October 1979.  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

___jea__  __bpi___  __mjf____  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 E. Anderholm
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011015                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050922                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19761101                                |
|DISCHARGE AUTHORITY     |AR 635-200 C13                          |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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