RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          22 November 2005
      DOCKET NUMBER:  AR20050002428


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Thomas A. Pagan               |     |Chairperson          |
|     |Mr. Eric N. Anderson              |     |Member               |
|     |Mr. Joe R. Schroeder              |     |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
honorable or at least to a general discharge.

2.  The applicant states that he believes that prejudice had something to
do with his discharge because he was the only black man in his company and
feels that procedures were not followed in discharging him.  He further
states that he was told if he accepted the undesirable discharge it would
be upgraded after a few months.  He also states that he did not receive a
board hearing and therefore was not allowed to present his case.  He
continues by stating that he waited for the discharge to come and when it
did not come, he felt betrayed.  He also states that he does not feel he
was treated fairly and what occurred did not warrant the discharge he
received.

3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 19 August 1974.  The application submitted in this case is
dated 7 December 2004 and was received on 15 February 2005.

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.  He enlisted on 29 September 1972 for a period of 3 years, assignment to
Europe, and training in the administrative career management group (71).
He successfully completed his training and was transferred to Furth, West
Germany, on 26 February 1973.  He was assigned to a postal detachment for
duty as a    clerk-typist.

4.  On 5 December 1973, nonjudicial punishment (NJP) was imposed against
him for five specifications of failure to go to his place of duty during
the period of 23 November through 2 December 1973 and disobeying a lawful
order from a
superior noncommissioned officer.  His punishment consisted of a reduction
to the pay grade of E-1, a forfeiture of pay, and extra duty.  He did not
appeal his punishment.

5.  On 1 March 1974, NJP was imposed against him for being absent from his
place of duty from 20 February to 1 Match 1974.  His punishment consisted
of a forfeiture of pay and he did not appeal the punishment.

6.  He received a rehabilitative transfer to an armor unit in Mainz-
Gosenheim on 17 March 1973 and on 13 July 1974, charges were preferred
against the applicant for failure to go to his place of duty, for being
absent without leave from 4 June until 9 July 1974, for missing movement,
for being disrespectful in language towards a superior noncommissioned
officer, and for failure to secure his weapon.

7.  After consulting with counsel, the applicant submitted a request for
discharge for the good of the service in lieu of trial by court-martial.
In his request he stated that he understood that he may be discharged with
an undesirable discharge, that he understood the prejudice he may be
subjected to as a result of such a discharge, that he understood that he
would be deprived of many or all benefits and that he was not subjected to
coercion by anyone to submit such a request.  He also elected not to submit
a statement in his own behalf.

8.  In August 1974, he received an Enlisted Efficiency Report (EER) in
which he received all unsatisfactory ratings and his rater recommended that
he be denied continued service in the military.

9.  The applicant’s request was approved and he was returned to Fort Dix,
New Jersey, on 19 August 1974, where he was discharged with an undesirable
discharge characterized as under other than honorable conditions on 19
August 1974, under the provisions of Army Regulation 635-200, chapter 10,
in lieu of trial by court-martial.  He had served 1 year, 9 months, and 17
days of total active service and had 34 days of lost time due to AWOL.

10.  There is no evidence in the available records to show that he ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that board’s 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of the 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 charges have
been preferred, submit a request for discharge for the good of the service
in lieu of trial by court-martial.  A condition of submitting such a
request is that the individual concerned must indicate that they are
submitting the request of their own free will, without coercion from anyone
and that they have been briefed and understand the consequences of such a
request as well as the discharge they might receive.  Although an honorable
or general discharge may be issued, a discharge characterized as under
other than honorable conditions is normally considered appropriate.  There
were not then, or now, any provisions for an automatic upgrade of such
discharges.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, for the good of the service to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate under the circumstances.

3.  The applicant’s contention that he was not afforded the opportunity to
present matters in his own behalf has been noted and found to be without
merit.  At the time he requested discharge, he declined the opportunity to
submit matters in his own behalf.  There is also no evidence that race
played any role in his discharge.

4.  Additionally, after being afforded the opportunity to assert his
innocence before a trial by court-martial, he voluntarily requested a
discharge for the good of the service in hopes of avoiding a punitive
discharge and having a felony conviction on his records.

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.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 19 August 1974; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on         18 August 1977.  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

__tap___  __ena___  __jrs___  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.



                                  Thomas A. Pagan
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050002428                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051122                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1974/08/19                              |
|DISCHARGE AUTHORITY     |AR635-200/CH10 . . . . .                |
|DISCHARGE REASON        |GD OF SVC                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |689/A70.00                              |
|1.144.7000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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