RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        FEBRUARY 8, 2005
      DOCKET NUMBER:  AR2004106858


      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. Margaret K. Patterson         |     |Chairperson          |
|     |Ms. Shirley L. Powell             |     |Member               |
|     |Ms. Susan A. Powers               |     |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 undesirable discharge be upgraded to a
general discharge.

2.  The applicant states that he joined the Army at age 17 when racial
tensions were strong in Baumholder, Germany.  He states that the conditions
that a number of the soldiers faced instilled fear and confusion in him and
that as a result of not being properly advised, he foolishly signed a
request for a chapter 10 discharge.  He states that he served for 11 months
and along with a number of other black troops, he was offered the option of
facing a court-martial or requesting a chapter 10 discharge.  He states
that as a result of being young and afraid, he agreed to a chapter 10
discharge.  He goes on to state that he was told by a Judge Advocate
General (JAG) officer that he would not be able to pursue any Government
jobs or any public service jobs and that because he was young and immature,
he made a lifetime of bad choices.  He states that since many of the
soldiers, including him, were treated unfairly and ill advised by counsel,
his discharge should be upgraded so he can receive benefits and assistance.
 He concludes by stating that he has been in and out of prison since he was
20 years old and that he is now older and has come to his senses.

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 30 May 1972.  The application submitted in
this case is dated 29 March 2004 and the applicant was incarcerated when he
submitted his application.

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 14 June 1971, he enlisted in the Army in Columbia, South Carolina,
with parental consent, at age 17, for 3 years training as an infantryman
and assignment to Europe.  He successfully completed his training as an
infantry direct fire crewman.

4.  On 19 July 1971, nonjudicial punishment was imposed against the
applicant for failure to obey a lawful order.  His punishment consisted of
a forfeiture of pay, restriction and extra duty.

5.  The applicant was promoted to the pay grade of E-2 on 10 September 1971
and to the pay grade of E-3 on 15 October 1971.  He was transferred to
Germany on 22 October 1971 and his conduct and efficiency ratings were
excellent.  He was promoted to the pay grade of E-4 on 7 March 1972.

6.  Charges were preferred against the applicant on 28 April 1972, for one
specification of pointing a pistol at a soldier serving in the pay grade of
E-3 and one specification of pointing a pistol at a soldier serving in the
pay grade of E-4 and stealing $400.00.

7.  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.  In doing so he
acknowledged that he understood that he would be deprived of any and all
Army benefits; that he may be ineligible for many or all benefits
administered by the Veterans’ Administration; and that he may be deprived
of his rights and benefits as a veteran under both Federal and State Law.

8.  The appropriate authority approved the request for discharge on 19 May
1972.  Accordingly, on 30 May 1972, 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 11 months and
17 days of total active service and he was furnished an Undesirable
Discharge Certificate.

9.  The applicant applied to the Army Discharge Review Board (ADRB) to
upgrade his discharge.  On 15 August 1977, the ADRB denied the applicant’s
request for upgrade.  The ADRB determined that the applicant’s discharge
was proper and equitable and that the discharge was properly characterized
as undesirable.

10.  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 undesirable discharge.

11.  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 United States 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 Army Board for Correction
of Military Records (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 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, there is no
evidence in the available record nor has the applicant submitted any
evidence to support his contention that racial tensions played any part in
charges being preferred against him.  The evidence of record shows that he
held a pistol on two soldiers and stole $400.00 from one of the soldiers.

4.  His contention that the JAG officer did not properly advise him has
also been noted.  However, the evidence of record clearly shows that he
acknowledged that he understood the consequences of submitting a request
for discharge under chapter 10. He could have chose of stand trial by a
court-martial if he believed that he was being falsely accused and he opted
not to do so.

5.  Consideration has been given to the applicant’s age at the time of his
enlistment in the Army.  Nonetheless, his youth and immaturity is not a
sufficient basis to warrant the relief requested.

6.  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.

7.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 15 August 1977.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 14 August 1980.  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_____  sap_____  slp    ____  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                 |AR2004106858                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050208                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19720530                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |CHAPTER 10/FOR THE GOOD OF SERVICE      |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  708  |144.7100.0000/CONDUCT TRIABLE BY CM     |
|2.  715                 |144.7200.0000/LARCENY                   |
|3.  716                 |144.7300.0000/ASSAULT                   |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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