RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          2 November 2004
      DOCKET NUMBER:  AR2004102998


      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. Rosa M. Chandler              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |Member               |
|     |Mr. Robert L. Duecaster           |     |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 general discharge (GD)
under honorable conditions be upgraded to a fully honorable discharge.

2.  The applicant states, in effect, that he was wrongfully charged and
convicted of bad behavior due to his association with another individual
who was smoking in the barracks.  He was never punished for the offense.

3.  The applicant provides in support of his request:

      a.  Letter that was written by the applicant in his own behalf, dated
17 January 2004.


      b.  Letter from the Rehabilitation Services Supervisor, Department of
Human Services Waukegan, Illinois, dated 22 December 2003.


      c.  Letter from the Coordinator of the Learning Resource Center,
      College
of Lake County, dated 8 January 2004.


      d.  High School Equivalency Certificate from the Illinois State Board
of Education, dated 20 October 2003.


CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 28 May 1976.  The application submitted in this case is dated
15 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.  On 1 June 1973, the applicant enlisted in the Regular Army for a period
of 3 years.  He completed the training requirements and he was awarded
military occupational specialty (MOS) 71B (Clerk Typist).

4.  On 16 October 1974, while assigned to Fort Belvoir, Virginia,
nonjudicial punishment (NJP) under the provisions of Article 15, Uniform
Code of Military Justice (UCMJ) was imposed against the applicant for being
derelict in the performance of his duties, in that he failed to maintain
his barrack's quarters neat, clean and in a sanitary manner on 1 October
1974.  His punishment included reduction from private first class, pay
grade E-3, a forfeiture of $75.00 pay for 1 month (both suspended for 30
days), and 14 days of extra duty.

5.  On 12 December 1974, NJP under the provisions of Article 15, Uniform
Code of Military Justice (UCMJ) was imposed against the applicant for
acting in a disorderly manner and for wrongful appropriation of a
Government vehicle, valued at approximately $2,345.00.  His punishment
included reduction from pay grade E-3 to pay grade E-1 (that portion of the
punishment that provided for reduction below pay grade E-2 was suspended
for 6 months), a forfeiture of $150.00 pay per month for 2 months ($75.00
per month was suspended for
6 months) and 45 days extra duty and restriction.

6.  On 27 February 1975, the applicant was advanced to pay grade E-3.

7.  On 2 April 1975, NJP under the provisions of Article 15, Uniform Code
of Military Justice (UCMJ) was imposed against the applicant for failure to
go to his appointed place of duty at the time prescribed on 19 March 1975.
His punishment included reduction from pay grade E-3 to pay grade E-2, a
forfeiture of $45.00 pay for 1 month and 14 days of extra duty and
restriction.

8.  On 7 September 1975, the applicant was assigned to Fort Leonard Wood,
Missouri with duties in his MOS.  On 20 October 1975, NJP under the
provisions of Article 15, Uniform Code of Military Justice (UCMJ) was
imposed against the applicant for failure to report to his appointed place
of duty at the time prescribed on 8 and 9 October 1975.  His punishment
included a forfeiture of $90.00 pay for 1 month.

9.  On 20 October 1975, a bar to reenlistment was initiated against the
applicant. The basis cited for the bar to reenlistment were the above
misconduct offenses and the NJP actions taken against him.  On 19 November
1975, the applicant acknowledged he had been counseled concerning the bar
to reenlistment.  The applicant indicated in a statement provided in his
own behalf that he wanted to stay in the military and he requested that he
be allowed to reenlist.

10.  On 21 January 1976, NJP under the provisions of Article 15, Uniform
Code of Military Justice (UCMJ) was imposed against the applicant for
failure to obey the unit's Standard Operating Procedures by having a female
visitor in his barrack's room on 21 December 1975.  His punishment included
a forfeiture of $90.00 pay for 1 month ($55.00 was suspended for 30 days)
and 14 days of extra duty.

11.  The applicant's DD Form 214 (Report of Separation form Active Duty)
shows that on 28 May 1976, he was separated with a GD under the provisions
of chapter 2 (currently chapter 4), Army Regulation 635-200, due to the
expiration of his term of service.  He had completed 2 years, 11 months and
28 days of creditable active military service and he had no recorded lost
time.

12.  There is no evidence that the applicant ever applied to the Army
Discharge Review Board for review of his discharge under that board's 15-
year statute of limitations.

13.  Army Regulation 635-200, Army Regulation 635-200, then in effect,
provided the authority for the separation of enlisted personnel upon
expiration of term of service.  It provided, in pertinent part, that an
honorable characterization of service is appropriate when the quality of
the member's service generally met the standards of acceptable conduct and
performance of duty for Army personnel, or is other wise so meritorious
that any other characterization would clearly be inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors, which would have jeopardized his rights.

2.  The available evidence shows no arbitrary or capricious actions by the
applicant's chain of command.  Given his record of repeated misconduct, his
characterization of service is appropriate and does not merit a fully
honorable discharge.

3.  The applicant's record does not show that he was ever charged or
convicted of bad behavior, because of his association with another
individual.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 May 1976; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
27 May 1979.  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

__mkp___  __jrs___  __rld___  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.


                                  Margaret K. Patterson
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004102988                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041102                                |
|TYPE OF DISCHARGE       |(GD)                                    |
|DATE OF DISCHARGE       |19760528                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 2                       |
|DISCHARGE REASON        |A03.00                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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