RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           1 July 2004
      DOCKET NUMBER:   AR2004100742


      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. Lana McGlynn                  |     |Chairperson          |
|     |Ms. Linda Simmons                 |     |Member               |
|     |Mr. John Meixell                  |     |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, in effect, that it is customary today to issue a
general discharge when the volunteer elects to leave the military under non-
disciplinary circumstances.  He contends that in 1974 it was customary to
give an undesirable discharge due to the nature of the post Vietnam
conflict.

3.  The applicant provides a letter, dated 13 August 2003, from the
Department of the Veterans Affairs; a photograph of various forms of
identification; a court order, dated 7 June 1984, for a name change; and a
Certificate of Achievement in Bookkeeping.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 26 November 1974.  The application submitted in this case is
dated
22 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 26 April 1974 for a period of 3 years.  He
successfully completed basic combat training.  While in advanced individual
training, on 29 July 1974, nonjudicial punishment was imposed against the
applicant for failure to repair, disobeying a lawful order, using
disrespectful language toward a superior noncommissioned officer, and
assault.  His punishment consisted of a forfeiture of pay, restriction, and
extra duty.

4.  Upon completion of advanced individual training the applicant was
awarded military occupational specialty 13B (field artillery crewman).

5.  On 20 August 1974, nonjudicial punishment was imposed against the
applicant for being absent without leave (AWOL) from 12 August 1974 to
15 August 1974 and breaking restriction.  His punishment consisted of a
forfeiture of pay, restriction, and extra duty.



6.  On 11 October 1974, contrary to his plea, the applicant was convicted
by a special court-martial of aggravated assault (cutting another soldier
on his hand with a knife).  He was sentenced to be confined at hard labor
for 4 months and to forfeit $217 per month for 4 months.  On 18 October
1974, the convening authority approved the sentence.

7.  On 20 November 1974, the applicant’s unit commander initiated action to
separate him 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 cited that the
applicant’s conduct and efficiency ratings were unsatisfactory, that he had
incurred numerous disciplinary infractions (which included making a false
statement to a guard, abusive language toward guard personnel, failed
inspections, and failure to follow instructions), and that the applicant
had two nonjudicial punishments and one special court-martial conviction.


8.  On 20 November 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.

9.  On 22 November 1974, the separation authority approved the
recommendation for separation and directed the issuance of an Undesirable
Discharge Certificate.

10.  Accordingly, the applicant was discharged on 26 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 3
months and 27 days of total active service with 94 days of lost time.

11.  On 14 September 1988, the Army Discharge Review Board (ADRB) denied
the applicant's request for a general discharge.

12.  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.

13.  Army Regulation 635-200, currently in effect, 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, and convictions by civil authorities.
Action will be taken to separate a member for misconduct when it is clearly
established that rehabilitation is impracticable or is unlikely to succeed.
 A discharge under other than honorable conditions is normally appropriate
for a soldier discharged under this chapter.

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.

15.  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 evidence of record does not support the applicant's contention that
under current standards he would receive a general discharge.  The current
governing regulation states that an individual separated by reason of
misconduct for minor disciplinary infractions or a pattern of misconduct
would normally be furnished a discharge under other than honorable
conditions.

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.  He had an opportunity to
submit a statement in which he could have voiced his concerns and he failed
to do so.

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

4.  The evidence of record does not support the applicant’s contention that
he elected to leave the military under non-disciplinary circumstances.  He
was



discharged for unfitness due to frequent incidents of a discreditable
nature with civil or military authorities.  His record of service included
numerous disciplinary infractions, two nonjudicial punishments, one special
court-martial conviction, and 94 days of lost time.  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 14 September 1988.
 As a result, the time for the applicant to file a request for correction
of any error or injustice to this Board expired on 13 September 1991.
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

LM_____  LS______  JM______  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.




            _Lana McGlynn____________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100742                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040701                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19741126                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 13                   |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |