RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           5 October 2004
      DOCKET NUMBER:  AR2004101797


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Larry C. Bergquist            |     |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, an upgrade of his undesirable
discharge (UD).

2.  The applicant states, in effect, that he was very young and his acts
were not that bad.  He further claims that he believes his punishment and
discharge were too harsh.

3.  The applicant provides third-party character statements from his
priest, a neighbor and a friend in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 25 August 1971.  The application submitted in this case
was received on 5 January 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.  The applicant’s record shows that he enlisted in the Regular Army and
entered active duty on 13 February 1971.  He was trained in, awarded, and
served in military occupational specialty (MOS) 76Y (Supply Specialist) and
the highest rank he attained while serving on active duty was private/E-2
(PV2).
4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows that
during his active duty tenure, he earned the National Defense Service Medal
and Sharpshooter Qualification Badge with Rifle Bar.  It also confirms that
he departed absent without leave (AWOL) from his unit at Fort Lee, Virginia
on
22 July 1971 and remained away for 35 days until returning to military
control on
25 August 1971.  His record documents no acts of valor, significant
achievement or service warranting special recognition during this
enlistment.

5.  On 21 July 1971, a Charge Sheet (DD Form 458) was prepared that
preferred two court-martial charges against the applicant.  Charge 1 was
for his violation of Article 121 of the Uniform Code of Military Justice
(UCMJ) by stealing the property of another soldier and Charge II was for
violating Article 134 of the UCMJ by wrongfully communicating a threat to a
sergeant.

6.  The applicant consulted with legal counsel and was advised of the basis
for the contemplated trial by court-martial, the maximum permissible
punishment authorized under the UCMJ, the possible effects of an UD, and of
the procedures and rights that were available to him.  Subsequent to
receiving this legal counsel, the applicant voluntarily requested discharge
for the good of the service, in lieu of trial by court-martial.

7.  In his request for discharge, the applicant indicated that he
understood that by requesting discharge, he would be deprived of many or
all Army benefits, that he could be ineligible for many or all benefits
administered by the Department of Veterans Affairs (VA), and that he could
be deprived of his rights and benefits as a veteran under both Federal and
State law.

8.  On 23 August 1971, the separation authority approved the applicant’s
request for discharge and directed that he receive an UD and that he be
reduced to the lowest enlisted grade.  On 25 August 1971, the applicant was
discharged accordingly.

9.  The DD Form 214 the applicant was issued on the date of his discharge,
25 August 1971, confirms that he completed a total of 5 months and 9 days
of creditable active military service and that he accrued 35 days of time
lost due to AWOL.
10.  On 23 October 1974, the Army Discharge Review Board (ADRB), after
carefully considering the applicant’s case and concluding that the
applicant’s discharge was proper and equitable, voted to deny his request
for an upgrade of his UD.

11.  The National Personnel Records Center (NPRC) military records provided
to the Board contain enlistment contracts and other documents that show the
applicant enlisted in the Regular Army on two separate occasions subsequent
to receiving his UD.  It appears, based on the enlistment contracts on
file, that the applicant withheld information regarding his prior service
during processing for both of these enlistments.

12.  An enlistment contract (DD Form 4) on file shows the applicant
enlisted in the Regular Army for 4 years on 13 December 1974 using a
different first name, however, his social security account number was the
same.  Item 49 (Prior Service) of this DD Form 4 contains the entry “None”
and the applicant signed the document attesting to the fact that all the
entries were true.

13.  There are no personnel qualification records or separation documents
in the file for the enlistment period beginning on 13 December 1974.  The
only other documents on file for this period are two DA Forms 2627 (Record
of Proceedings Under Article 15, UCMJ).  These documents show the applicant
accepted nonjudicial punishment (NJP) on the following two separate
occasions for the offense(s) indicated:  12 September 1975, for willfully
disobeying the order of a commissioned officer and using disrespectful
language to a sergeant; and
26 September 1975, for wrongfully possessing marijuana.  There is no
information on file regarding how or when this enlistment ended.

14.  The NPRC file provided to the Board also includes a DD Form 4 showing
the applicant enlisted in the Regular Army for 3 years on 11 March 1977.
Item 9 (Previous Military Service) contains entries indicating the
applicant had no prior service and the applicant signed this document
attesting to the fact the entries were true.

15.  The applicant’s record for the period of service beginning on 11 March
1977, shows he accepted NJP on the following two occasions for the offenses
indicated:  14 December 1977, for being AWOL from on or about 7 September
through on or about 24 October 1977; and on 17 February 1978, for being
AWOL from on or about 1 through on or about 7 February 1978.
16.  The record for the 11 March 1977 enlistment also shows that the
applicant’s commander recommended his general, under honorable conditions
discharge (GD) under the provisions of the Expeditious Discharge Program
(EDP) based on his poor attitude, inability to adapt socially, failure to
demonstrate promotion potential and hostility toward the Army.

17.  After consulting counsel and consenting to his EDP separation, the
applicant was separated with a GD on 27 March 1978.  The DD Form 214 he was
issued for this period of service shows he completed 10 months and 11 days
of creditable active military service and accrued 65 days of time lost
during this enlistment.

18.  The applicant provides three third-party statements attesting to his
good post service conduct and requesting that his discharge be upgrade
because of his youth and immaturity at the time.

19.  Army Regulation 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 at
any time after the charges have been preferred, submit 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. However, at the time of the applicant's separation the
regulation provided for the issuance of an UD.

20.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 5, paragraph 5-37, then in
effect, provided the policy and outlined the procedures for separating
individuals under the EDP.  The EDP provided for the separation of soldiers
who demonstrated that they could not or would not meet acceptable standards
required of enlisted personnel.  An HD or GD could be issued under this
program.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was young and immature and that his
discharge was too harsh, along with the supporting third-party statements
he provided were carefully considered.  However, given the applicant’s
extensive history of misconduct and deception, these factors are
insufficiently mitigating to warrant the requested relief.

2.  Although the applicant did not indicate the date of the particular
discharge he wished upgraded in his application, he did specify that his
request related to his UD.  Regarding his 25 August 1971 UD, the evidence
of record confirms he was charged with the commission of an offense
punishable under the UCMJ with a punitive discharge.  After consulting with
defense counsel, he voluntarily requested discharge in lieu of trial by
court-martial.  All requirements of law and regulation were met and the
rights of the applicant were fully protected throughout the separation
process.  Further, his discharge accurately reflects his overall record of
undistinguished service during this period active duty service.

3.  The evidence of record also clearly shows the applicant enlisted under
false pretenses on two separate occasions after his initial enlistment
ended in an UD.  The record contains two enlistment contracts showing the
applicant enlisted in 1974 and 1977 without divulging information regarding
his prior service or discharge.  Although records are not complete for the
first of these two enlistments, the second ended in the applicant receiving
a GD under the EDP.  The evidence of record also confirms his separation
processing in connection with this discharge was also accomplished in
accordance with the regulation in effect at the time and it accurately
reflects his less than fully honorable service during this period.

4.  The applicant’s disciplinary history over three separate enlistments
and a period of more than seven years was extensive.  Therefore, his claim
of immaturity and his post service conduct are not sufficiently mitigating
factors that would support an upgrade of his UD at this time.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 27 March 1978, the date of his last
discharge.  Therefore, the time for him to file a request for correction of
any error or injustice expired on 26 March 1981.  However, he 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

_KAN___  __JTM___  __LCB __  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 A. NEWMAN_
                    CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004101797                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |                                        |
|TYPE OF DISCHARGE/      |(HD, GD, UOTHC, UD, BCD,  UD            |
|DATE OF DISCHARGE       |2004/09/DD                              |
|DISCHARGE AUTHORITY     |AR   . . . . .                          |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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