RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          17 August 2004
      DOCKET NUMBER:  AR2004101040


      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. Luis Almodova                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Mr. Robert J. Osborn, II          |     |Member               |
|     |Ms. Eloise C. Prendergast         |     |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, in effect, that his discharge be upgraded from
Undesirable to General (Under Honorable Conditions).

2.  The applicant states, in effect, that during the time he was stationed
at Fort Jackson, South Carolina, he was discriminated against and
threatened by the minorities that were also stationed there.  He adds that
the scars on his permanent records need to be removed because he was in
fear for his life from the harassment he received.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an injustice, which occurred
on 6 December 1971.  The application submitted in this case is dated 17
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.  The applicant enlisted in the Regular Army for 3 years on 4 June 1970.
He completed basic combat training at Fort Jackson, South Carolina, and his
advanced individual training at Fort Sam Houston, Texas.  On completion of
his training, he was awarded the military occupational specialty (MOS) 91A,
Medical Corpsman.

4.  Item 33 (Appointments and Reductions) of the applicant's DA Form 20,
Enlisted Qualification Record, shows that the applicant was promoted to the
rank and pay grade of Private First Class, E-3, on 15 February 1971.

5.  On 6 April 1971, nonjudicial punishment was imposed against the
applicant for his failing to go at the time prescribed to his appointed
place of duty on 21, 22, and 25 March 1971.  His punishment consisted of
forfeiture of $25.00 per month, for one month, and 10 days extra duty.  The
applicant did not appeal the punishment.

6.  Item 44 (Time Lost Under Section 972, Title 10, United States Code), of
the applicant's DA Form 20, shows that the applicant had the following
periods of lost time: from 5 May 1971 to 3 June 1971, absent without leave
(AWOL); from 4 June 1971 to 10 November 1971 (AWOL); and from 12 November
1971 to 3 December 1971 (confinement).  These same periods of lost time are
shown in Item 26 (Non-pay Periods Time Lost) and Item 30 (Remarks) of the
applicant's DD Form 214.

7.  Item 26 (Decorations, Medals, Badges, Commendations, Citations, and
Campaign Ribbons Awarded or Authorized), of the applicant's DD Form 214,
shows that he was awarded the National Defense Service Medal and the Expert
Marksmanship Qualification Badge, with Automatic Rifle Bar.  The record
contains no documentary evidence of acts of valor, achievement, or service
warranting special recognition.

8.  The facts and circumstances surrounding the applicant's discharge are
not contained in his service personnel record.  Although the applicant's
discharge "packet" is not available for review, his DD Form 214, Report or
Transfer or Discharge, shows that he was discharged for the good of the
service on 6 December 1971, in the rank and pay grade, Private, E-1, under
the provisions of Army Regulation (AR) 635-200.  His service was
characterized as under other than honorable conditions and he was provided
an undesirable discharge certificate, DD Form 258A.  At the time of his
discharge, the applicant had 11 months, and 2 days creditable active
military service and 211 days lost time due to absence without leave and
confinement.

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

10.  AR 635-200 sets forth the basic authority for the separation of
enlisted personnel.  Chapter 10 of that regulation provides, in pertinent
part, that a member who has committed an offense or offenses for which the
authorized punishment includes a punitive discharge may submit, at any time
after the charges have been preferred, a request for discharge for the good
of the service, in lieu of trial by court-martial.  A discharge under other
than honorable conditions is normally considered appropriate, but the
separation authority may direct a general discharge or an honorable
discharge if such is merited by the soldier's overall record and if the
soldier's record is so meritorious that any other characterization clearly
would be improper.
11.  AR 635-200, which sets policies, standards and procedures for the
orderly administrative separation of soldiers, defines a general discharge,
in paragraph 3-7, as 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 separation specifically allows such
characterization.

12.  There is no evidence in the applicant's service record that he was the
subject of discrimination or that his life was threatened by anyone while
he was at Fort
Jackson.  Had either of these circumstances presented themselves, the
applicant had a chain of command to which he could have reported them.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record is void of facts and circumstances concerning
the events that led to his discharge from the Army.

2.  The applicant's DD Form 214 indicates that the applicant was discharged
on 6 December 1971, under the provisions of Army Regulation 635-200.  An
SPN (Separation Program Number) 246 (For the Good of the Service) was
applied to the applicant's separation document.

3.  The applicant’s record contains a properly constituted DD Form 214,
which was authenticated by the applicant.  Government regularity in the
discharge process is presumed.

4.  In the absence of information to the contrary, it is presumed that all
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout the separation process.  The
characterization of service for this type of discharge is normally under
other than honorable conditions and it is believed that the applicant was
aware of that prior to requesting discharge.  Finally, the applicant’s
entire record of service for the period under review was considered.  It is
believed that the reason for discharge and the characterization of service
were both proper and equitable.

5.  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.

6.  By having absented himself from his organization two times for the
duration that is shown in his service records, and by having subjected
himself to non-judicial punishment from failing to report to his appointed
place of duty on three occasions, the applicant diminished the quality of
his service and his service did not meet the standards of acceptable
conduct and performance expected of Army personnel; therefore, the
applicant is not entitled to an upgrade of his discharge from under
conditions other than honorable, to a general discharge under honorable
conditions.

7.  There is no evidence in the applicant's service record that he was the
subject of discrimination or that his life was being threatened by anyone
while he was at Fort Jackson.  The applicant's performance of duty and
conduct were apparently sufficiently acceptable to his chain of command to
have allowed them to recommend his promotion to Private First Class on 15
February 1971.  It is apparent that the chain of command had sufficient
knowledge of his performance and activities to know if he was being
discriminated against or if his life was being threatened.  Had these
circumstances presented themselves, the applicant had an obligation and a
duty to submit a report to his chain of command, and not to resort to going
AWOL to resolve his problems.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 December 1971; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 5 December 1974.  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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__slp___  __rjo___  __ecp___  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.



                                  Shirley L. Powell
            ______________________
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR2004101040                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040817                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19711206                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |For the Good of the Service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  360  |144.0000                                |
|2.  394                 |144.0133                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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