RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           8 July 2004
      DOCKET NUMBER:   AR2004100468


      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. Wanda L. Waller               |     |Analyst              |


  The following members, a quorum, were present:

|     |Ms. Kathleen Newman               |     |Chairperson          |
|     |Ms. Gail Wire                     |     |Member               |
|     |Mr. William Powers                |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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
general.

2.  The applicant states that based upon the advice of his counsel he
waived his right to appear before a board of officers with the assurance
that he would receive a general discharge.

3.  The applicant provides a letter of explanation, dated 11 October 2003;
a recommendation for elimination, dated 18 July 1974; and a request for
reconsideration of discharge, dated 8 October 1974.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 4 November 1974.  The application submitted in this case is
dated 11 October 2003.

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.  The applicant enlisted on 25 April 1972 for a period of 3 years.  He
was awarded military occupational specialty 11D (armored reconnaissance
specialist).

4.  On 29 January 1973, nonjudicial punishment was imposed against the
applicant for failure to repair.  His punishment consisted of a reduction
to E-2 (suspended), a forfeiture of pay (suspended), restriction, and extra
duty.

5.  On 4 June 1973, nonjudicial punishment was imposed against the
applicant for being absent without leave from 28 May 1973 to 29 May 1973.
His punishment consisted of a reduction to E-2 (suspended) and a forfeiture
of pay.

6.  On 6 June 1973, nonjudicial punishment was imposed against the
applicant for using disrespectful language toward a superior
noncommissioned officer.  His punishment consisted of a reduction to E-2
and a forfeiture of pay.

7.  On 7 January 1974, nonjudicial punishment was imposed against the
applicant for failure to repair (two specifications).  His punishment
consisted of a reduction to E-1 (suspended), restriction, and extra duty.
On 1 March 1974, the suspended portion of the punishment (reduction to E-1)
was vacated.
8.  On 2 June 1974, nonjudicial punishment was imposed against the
applicant for being absent from guard duty (1 day) and disobeying a lawful
order.  His punishment consisted of a reduction to E-1, a forfeiture of
pay, restriction, and extra duty.

9.  On 3 June 1974, a bar to reenlistment was imposed against the
applicant.

10.  On 2 July 1974, the applicant was notified of his pending separation
under the provisions of Army Regulation 635-200, chapter 13, for unfitness
due to frequent incidents of a discreditable nature with civil or military
authorities.

11.  On 2 July 1974, the applicant consulted with counsel, requested
consideration of his case by a board of officers, requested a personal
appearance, and elected not to submit a statement on his own behalf.  He
also acknowledged that he might receive an undesirable discharge, that he
might be ineligible for many or all benefits as a veteran under both
Federal and State laws, and that he might expect to encounter substantial
prejudice in civilian life.

12.  On 15 July 1974, the unit commander initiated action to separate the
applicant under the provisions of Army Regulation 635-200, chapter 13,
paragraph 13-5a(1), for unfitness due to frequent incidents of a
discreditable nature with civil or military authorities.

13.  On 6 September 1974, the applicant consulted with counsel, waived
consideration of his case by a board of officers, waived a personal
appearance, and elected not to submit a statement on his own behalf.  He
again acknowledged that he might receive an undesirable discharge, that he
might be ineligible for many or all benefits as a veteran under both
Federal and State laws, and that he might expect to encounter substantial
prejudice in civilian life.

14.  On 23 September 1974, the separation authority approved the
recommendation for separation and directed the issuance of an Undesirable
Discharge Certificate.

15.  While the applicant was awaiting his discharge, his legal counsel sent
a message advising that, per an "agreement" between the applicant and the
U.S. Army, the applicant was to be given a general discharge.  This message
was verified with the separation authority who stated that no agreement had
been made and that the undesirable discharge was appropriate and correct.

16.  Accordingly, the applicant was discharged on 4 November 1974 with an
undesirable discharge under the provisions of Army Regulation 635-200,
chapter 13, paragraph 13-5a(1) for unfitness due to frequent incidents of a
discreditable nature with civil or military authorities.  He had served 2
years, 6 months and
10 days of total active service.

17.  On 9 July 1975, the Army Discharge Review Board (ADRB) denied the
applicant's request for an honorable discharge.

18.  Army Regulation 635-200, in effect at the time, set forth the basic
authority for separation of enlisted personnel for unfitness or
unsuitability.  Chapter 13, paragraph 13-5a(1), provided for discharge due
to unfitness because of frequent incidents of a discreditable nature with
civil or military authorities.

19.  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.

20.  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 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 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 message prepared by the applicant's legal counsel supports the
applicant's contention that he waived his rights before a board of officers
based upon the advice of his counsel with the assurance that he would
receive a general discharge.  However, the separation authority determined
that there was no "agreement" and that the undesirable discharge was
appropriate and correct. More importantly, on both election forms the
applicant acknowledged that he might receive an undesirable discharge.

2.  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.

3.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.




4.  The applicant’s record of service included five nonjudicial punishments
and a bar to reenlistment.  As a result, his record of service was not
satisfactory.  Therefore, the applicant's record of service is
insufficiently meritorious to warrant a general discharge.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 9 July 1975.  As a
result, the time for the applicant to file a request for correction of any
injustice to this Board expired on 8 July 1978.  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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

KN_____  GW_____  WP______  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.




            __Kathleen Newman_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100468                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040708                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19741104                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 13                   |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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