RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        DECEMBER 14, 2004
      DOCKET NUMBER:  AR2004105250


      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. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Jennifer L. Prater            |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Ms. Diane J. Armstrong            |     |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 that his general discharge be upgraded to an
honorable discharge.

2.  The applicant states that at the time of his discharge, he was told
that his general discharge was as good as an honorable discharge and that
the only thing that he would not be able to do was to reenlist in the Army
once he got out of the service.  He states that he applied for a grant
through the Department of Veterans Affairs (VA) so that he would attend
school and get new training and that his application was denied.

3.  The applicant provides no additional documentation in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 2 September 1971.  The application submitted
in this case is dated 4 March 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 31 July 1969, he enlisted in the Army for 2 years, in the pay grade
of E-1.  He successfully completed his training as a cannoneer.  He was
promoted to the pay grade of E-2 on 16 January 1970 and to the pay grade of
E-3 on 1 February 1970.

4.  The applicant was honorably discharged on 31 January 1971, for the
purpose of immediate reenlistment.  He had completed 1 year and 6 months of
total active service.  He reenlisted in the Army for 6 years on 1 February
1971.





5.  On 1 April 1971, the applicant was convicted by a special court-martial
of being absent without leave (AWOL) from 21 February until 24 February
1971; for being absent from his place of duty on 24 February, 25 February
and 26 February 1971; and for failure to obey a lawful order.  He was
sentenced to a reduction in pay grade and a forfeiture of pay.

6.  The applicant was convicted by a summary court-martial on 19 May 1971,
of being AWOL from 11 May until 14 May 1971.  He was sentenced to a
forfeiture of pay and restriction.

7.  Nonjudicial punishment (NJP) was imposed against the applicant on
5 April 1971, for being absent from his place of duty from 29 March until 1
April 1971.  His punishment consisted of a forfeiture of pay and extra
duty.

8.  On 8 April 1971, NJP was imposed against him for failure to go to his
appointed place of duty.  His punishment consisted of a reduction in pay
grade and a forfeiture of pay.

9.  On 20 May 1971, NJP was imposed against the applicant for willfully
destroying a plate glass window, by striking it with his fist.  His
punishment consisted of a forfeiture of pay and extra duty.

10.  On 1 July 1971, the applicant was notified that charges were pending
against him for five specifications of breaking restriction.  He
acknowledged receipt of the notification on 9 July 1971 and after
consulting with counsel, he submitted a request for discharge under the
provisions of Army Regulation
635-200, chapter 10, for the good of the service, in lieu of trial by court-
martial.

11.  The appropriate authority approved the request for discharge on
23 August 1971.  Accordingly, on 2 September 1971, the applicant was
discharged under the provisions of Army Regulation 635-200, chapter 10, for
the good of the service, in lieu of trial by court-martial.  He had
completed 1 year, 10 months and 26 days of total active service and he was
furnished a General Discharge Certificate.

12.  The available records fails to show that the applicant ever applied to
the Army Discharge Review Board for an upgrade of his discharge within that
board’s 15-year statute of limitations.




13.  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
submit a request for discharge for the good of the service, in lieu of
trial by court-martial.  The request may be submitted at any time after
charges have been preferred and must include the individual's admission of
guilt.  Although an honorable or general discharge is authorized, a
discharge under other than honorable conditions is normally considered
appropriate.

DISCUSSION AND CONCLUSIONS:

1.  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.

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

3.  The applicant’s contentions have been noted.  However, the fact that
the VA may have denied him a grant is not a sufficient basis to warrant the
relief requested.

4.  The evidence of record clearly shows that the applicant was convicted
by one special court-martial, one summary court-martial and that he had NJP
imposed against him on three separate occasions as a result of his acts of
misconduct.  He had charges pending against him at the time that he
submitted his request for discharge and it appears that the character of
the discharge is commensurate with his overall record of service.

5.  In order to justify correction of a military record the applicant must
show 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.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 2 September 1971; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 1 September 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

dja____ _  jlp   _____  le ______  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 L. Prater___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR22004105250                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041214                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |CHAPTER 10                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  689  |144.7000.0000/FTGS                      |
|2.  706                 |144.7017.0000/SERIOUSNESS OF OFFENSE    |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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