RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            8 June 2004
      DOCKET NUMBER:   AR2004100591


      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. Jennifer Prater               |     |Chairperson          |
|     |Ms. Karen Fletcher                |     |Member               |
|     |Mr. John Denning                  |     |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 general discharge be upgraded to
honorable.

2.  The applicant states, in effect, that he was told his discharge would
be upgraded to honorable in 180 days.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation
from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 22 November 1974.  The application submitted in this case is
dated
3 November 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.  Part II (Statement of Law Violations and Previous Conditions) of the
applicant's DA Form 3286 (Statements for Enlistment), dated 19 August 1974,
shows that he reported five violations (runaway, expired safety sticker and
three offenses of driving without a license).  He enlisted on 22 August
1974 for a period of 3 years.

4.  In October 1974, during a routine security investigation it was
determined that the applicant had been arrested on 10 March 1970 in
Garland, Texas, for being incorrigible.  He was also arrested on 9 July
1974 in Garland, Texas, for theft.

5.  On 18 October 1974, the applicant was notified of his pending
separation under the provisions of Army Regulation 635-200, chapter 5,
paragraph 38, for concealment of arrest record.

6.  On 18 October 1974, the applicant's unit commander strongly recommended
that he be retained in the service.  He cited that the applicant had
demonstrated the necessary performance, aptitude, and ability to become an
asset to the Army during basic combat training, that he had no disciplinary
actions, and that he had been a model soldier.

7.  The intermediate commanders recommended that the applicant be separated
with a general discharge under the provisions of Army Regulation 635-200,
chapter 5, paragraph 38, for concealment of arrest record.

8.  On 8 November 1974, the approval authority approved the recommendation
for separation from the service and directed the issuance of a General
Discharge Certificate.

9.  Accordingly, on 22 November 1974, the applicant was discharged with an
under honorable conditions (general) discharge under the provisions of Army
Regulation 635-200, chapter 5, for concealment of arrest record.  He had
served 3 months and 1 day of total active service.

10.  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.

11.  Army Regulation 635-200, in effect at that time, set forth the basic
authority for the separation of enlisted personnel.  Chapter 5 (Separation
for Convenience of the Government), paragraph 38, provided, in pertinent
part, that enlisted personnel who concealed an arrest record which did not
result in civil court conviction at the time of enlistment or induction
might be discharged.  Individuals discharged under this paragraph would be
given an honorable discharge or a general discharge.

12.  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.

13.  The U.S. Army does not have, nor has it ever had, a policy to
automatically upgrade discharges.  Each case is decided on its own merits
when an applicant requests a change in discharge.  Changes may be warranted
if the Board determines that the characterization of service or the reason
for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  A discharge upgrade is not automatic.

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.  Records show the applicant should have discovered the alleged injustice
now under consideration on 22 November 1974; therefore, the time for the
applicant to file a request for correction of any injustice expired on 21
November 1977.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

JP____  KF_______  JD______  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.




            _____Jennifer Prater______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100591                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040608                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19741122                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 5                    |
|DISCHARGE REASON        |Concealment of arrest record            |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |