RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        2 August 2005
      DOCKET NUMBER:  AR20040011495


      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. Yvonne J. Foskey              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Ms. Jeanette R. 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 under other than honorable conditions
discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that his discharge should be upgraded
to honorable because he voluntarily enlisted in the Army to serve his
country.  He further states, that his reduction in rank was too harsh of a
punishment.

3.  The applicant provided no documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 28 September 1978, the date of his discharge from the Army.
The application submitted in this case is dated 18 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 service personnel records show that he enlisted in the
Army Reserve on 2 February 1977 for a period of 6 years.

4.  Records show that on 11 February 1977, the applicant voluntarily
enlisted in the Regular Army for a period of 3 years.  He was trained in
and awarded military occupational specialty 19F (tank driver).

5.   On 9 May 1977, nonjudicial punishment was imposed against the
applicant for assaulting another Soldier.  His punishment consisted of
forfeiture of $50.00 per month for one month and three days restriction.

6.  At Headquarters 3rd Armored Division, in Germany the applicant was
convicted by a Special Court-Martial on 22 October 1977, for assaulting
another Soldier on 24 July 1977.  His punishment consisted of reduction to
grade of private/pay grade E-1, confinement at hard labor for two months,
and forfeiture
of $150.00 per month for two months.
7.  U.S. Army Retraining Brigade [Fort Riley] Special Court-Martial Order
Number 805, dated 15 December 1977, suspended the unexecuted portion of the
applicant’s sentence.  His punishment of forfeiture of $150.00 per month
for two months was suspended until 27 February 1978.  The Court-Martial
order directed that, unless the suspension was sooner vacated, the
suspended portion of the sentence will be remitted without further action.

8.  The applicant was reassigned to Fort Hood, Texas in January 1978.  On
5 June 1978, nonjudicial punishment was imposed against the applicant for
being disrespectful by yelling at his superior noncommissioned officer.
His punishment consisted of confinement for seven days.

9.  Records show that, on 8 June 1978, the applicant’s punishment of seven
days confinement was mitigated to nine days extra duty and nine days
restriction.

10.  There are no records available which shows the applicant’s separation
processing.  However, his records contain a DD Form 214, with separation
date of 28 September 1978.  This DD Form 214 shows that the applicant was
discharged under the provisions Army Regulation 635-200, chapter 14 of Army
Regulation 635-200 for misconduct.

11.  There is no indication that the applicant applied to the Army
Discharge Review Board for an upgrade of her discharge within its 15-year
statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for separating members for misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense, convictions by civil authorities,
desertion or absence without leave.  Action will be taken to separate a
member for misconduct when it is clearly established that rehabilitation is
impracticable or is unlikely to succeed.

13.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

14.  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.  The applicant contends that his under other than honorable conditions
should be upgraded to honorable.

2.  The discharge packet is not available in the applicant’s personnel
records.  However, in the absence of evidence to the contrary, it is
determined that all requirements of law and regulations were met and the
rights of the applicant were fully protected through the separation
process.

3.  Army Regulation clearly provides that military discharges are based on
the quality of the Soldier’s military service in accordance with published
standards.

4.  The applicant’s record of service shows a special court-martial for
assault.  His record of service also shows that the applicant received two
nonjudicial punishments and only completed 18 months of his required 36
months of service and accrued 50 days of lost time.  The applicant’s acts
of misconduct are not acceptable conduct or performances which merit an
honorable discharge.  In view of these facts, the applicant’s service also
was not satisfactory and he is, therefore, not entitled to a general
discharge.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 September 1978; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
27 September 1981.  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

_JRM___  __WDP___  _RLD___  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 D. Powers_
                                   CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011495                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/08/02                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1978/09/28                              |
|DISCHARGE AUTHORITY     |AR 635-200 Chp 14                       |
|DISCHARGE REASON        |Misconduct                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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