RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          1 September 2005
      DOCKET NUMBER:  AR20040011711


      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. Jessie B. Strickland          |     |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 be upgraded to a
more favorable discharge, that his lost time be removed from his report of
separation (DD Form 214) and that he be recognized as a veteran of a
foreign war.

2.  The applicant states, in effect, that his life at the age of 20 meant
little to him because the country was at war and he thought he could serve
honorably.  However, he experienced psychological difficulties and to this
day is still having problems.  He also states that his DD Form 214
indicates that he had 182 days of being absent without leave (AWOL) time,
when in fact he did not.  He continues by stating that he desires to be
recognized as a veteran of a foreign war.

3.  The applicant provides no additional documentation with his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 18 May 1973.  The application submitted in this case is dated
14 December 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 limitation 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.  He was born on 3 August 1950 and enlisted in the Regular Army in
Cleveland, Ohio, on 30 September 1971 for a period of 2 years.  He was
transferred to Fort Polk, Louisiana, to undergo his basic combat training
(BCT).

4.  On 4 November 1971, while still in BCT, nonjudicial punishment (NJP)
was imposed against him for failure to go to his place of duty.  His
punishment consisted of a forfeiture of pay (suspended for 1 month), extra
duty and restriction for 14 days.

5.  Upon completion of his BCT, he was transferred to Fort Sam Houston,
Texas, to undergo his advanced individual training (AIT) as a medical
corpsman.
6.  On 23 February 1972, while still in AIT, NJP was imposed against him
for stealing 19 packs of cigarettes, one pack of cigars and a box of
envelopes from the post exchange (PX).  His punishment consisted of a
reduction to the pay grade of E-1, a forfeiture of pay, extra duty and
restriction.

7.  On 18 May 1972, NJP was imposed against him for the wrongful personal
use of a military ambulance, for wrongfully abandoning the ambulance, for
being in a vehicle for which he was the driver, for leaving the scene of
the accident and for hitting a commissioned officer with the vehicle he was
driving.  His punishment consisted of a forfeiture of pay and extra duty.

8.  On 10 July 1972, his commander initiated action to bar him from
reenlistment based on his disciplinary record and the fact that he was
under investigation for assaulting a 70 year old German National and his
repeated acute alcohol intoxication requiring hospitalization on several
occasions.  The applicant elected not to submit matters in his own behalf
and the appropriate authority approved the bar to reenlistment.

9.  The circumstances surrounding the assault are not clear and the court-
martial order is not present in the available records.  However, it appears
that he was placed in pre-trial confinement from 19 August to 25 September
1972 and that he was convicted by a special court-martial on 13 December
1972 of violations of Articles 128 (assault), 134 (General article) and 80
(attempt) of the Uniform Code of Military Justice.  He was sentenced to
confinement at hard labor for 6 months and a forfeiture of pay for 6
months.

10.  He was transferred to the United States Army Retraining Brigade at
Fort Riley, Kansas to serve his confinement.

11.  On 7 May 1973, the applicant’s commander initiated action to
administratively discharge the applicant from the service under the
provisions of Army Regulation, 635-200, for unfitness due to his frequent
involvement in incidents of a discreditable nature with civil and military
authorities.  He cited as the basis for his recommendation, the applicant’s
disciplinary record, his disregard for military authority, his lack of
desire to return to duty, 10 adverse observation reports, his failure to
respond to numerous counseling sessions and his demonstrated efforts to be
eliminated from the service by any means.

12.  After consulting with counsel, the applicant waived all of his rights
and declined to submit a statement in his own behalf.  He also underwent a
mental status evaluation and was deemed to be mentally responsible, able to
distinguish right from wrong, and able to adhere to the right.

13.  The appropriate authority approved the recommendation for discharge on
10 May 1973 and directed that he be furnished an Undesirable Discharge
Certificate.

14.  Accordingly, he was discharged under other than honorable conditions
on 18 May 1973, under the provisions of Army Regulation 635-200, chapter
13, for unfitness due to his frequent involvement in incidents of a
discreditable nature with civil/military authorities.  He had served 1
year, 1 month and 17 days of total active service and had 182 days of lost
time due to confinement, which is properly reflected on his DD Form 214 as
lost time and non-pay periods.  His records also properly reflect his
foreign service in Europe.

15.  The applicant applied to the Army Discharge Review Board (ADRB) on
5 August 1973, for an upgrade of his discharge to a general discharge.  The
ADRB determined that his discharge was both proper and equitable under the
circumstances and voted unanimously to deny his request on 25 February
1976.

16.  He again applied to the ADRB on 7 September 1980 and contended at that
time that he had a problem with alcohol while in the service and although
he went through rehabilitation, it did him no good.  He requested that he
be given a general discharge.  The ADRB granted him a personal appearance
to appear before the Travel Panel in Cleveland, Ohio, and he failed to
respond.  Accordingly, the ADRB reviewed his case based on the available
evidence of record and again found that he had been properly discharged.
The ADRB denied his request on 12 July 1982.

17.  Army Regulation 635-200, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  Chapter 13 established
policy and procedures for separating personnel for unfitness.  Specific
categories included minor infractions, a pattern of misconduct, involvement
in frequent incidents of a discreditable nature with civil and military
authorities, and commission of a serious offense.  A discharge under other
than honorable conditions was and still is normally considered appropriate.

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.  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.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate considering all of the available facts of the case.

3.  The applicant's contentions have been noted by the Board; however, they
are not supported by either the evidence submitted with his application or
the evidence of record.  The applicant's misconduct consisted primarily of
his refusal to follow orders and to go to work as ordered.  He was afforded
numerous opportunities to rehabilitate himself; however, his misconduct
continued up until the time of his discharge.  Therefore, the board finds
that his record of undistinguished service does not warrant an upgrade of
his discharge.

4.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

5.  In view of the foregoing, there is no basis for granting the
applicant's request.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 12 July 1982.  As
a result, the time for the applicant to file a request for correction of
any error injustice to this Board expired on 11 July 1985.  The applicant
did not file within the ABCMR's 3-year statute of limitations and has not
provided 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____  __bje___  __rtd___  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                 |AR20040011711                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050901                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |19730518                                |
|DISCHARGE AUTHORITY     |AR635-200/ch13 . . . . .                |
|DISCHARGE REASON        |Unfit                                   |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |583/a51.00                              |
|1.144.5000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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