RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 September 2005
      DOCKET NUMBER:  AR20050002481


      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. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Hise                    |     |Chairperson          |
|     |Mr. Thomas O'Shaughnessy          |     |Member               |
|     |Mr. Patrick McGann                |     |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 under honorable
conditions discharge be upgraded to an honorable discharge.

2.  The applicant states he was told at the time of his release from active
duty that his general discharge would automatically become honorable after
10 years.

3.  The applicant provides no documents in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 23 July 1974.  The application submitted in this case is dated
4 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 limitations 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 enlisted in the Regular Army on 18 September 1972 for a
period of three years.  He completed the required training and was awarded
military occupational specialty 52A (Powerman).  He was promoted to private
first class on 20 September 1973.

4.  On 14 March 1974, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a lawful
command from a second lieutenant, two specifications.  His punishment
consisted of 14 days extra duty, a forfeiture of $75.00 pay for 2 months,
and a reduction to private E-2 (reduction suspended for 6 months).  The
suspension of the punishment of reduction to private E-2 was vacated.

5.  The applicant underwent a psychiatric examination on 3 April 1974.  He
was described as being mentally competent, able to distinguish right from
wrong, and able to adhere to the right.  The applicant was psychiatrically
cleared for appropriate administrative action.


6.  On 10 June 1974, the applicant accepted nonjudicial punishment under
Article 15 for wrongfully using reproachful words towards an acting
sergeant.  His punishment consisted of a forfeiture of $100.00 per month
for one month (suspended for 6 months).

7.  On 13 June 1974, the applicant's unit commander notified him of pending
separation action under the provisions of Army Regulation 635-200,
paragraph 13-5b(3) for unsuitability-apathy, defective attitude or
inability to expend effort constructively.  He was advised of his rights.

8.  The applicant acknowledged receipt of the notification, consulted with
legal counsel, waived consideration of his case by a board of officers, and
did not submit statements in his own behalf.

9.  The unit commander recommended that the applicant be required to appear
before a board of officers to determine whether he should be discharged
before his expiration of his term of service.  The unit commander indicated
that the applicant had received adverse counseling on several occasions
between October 1973 and June 1974 for not having a civilian driver's
license; possession of marijuana; drug and alcohol abuse (suspect);
disrespect towards an officer; disrespect and failure to obey orders;
report of mental hygiene; improper uniform; disorderly conduct; chapter 13
proceedings; and being disrespectful to superiors. The unit commander's
recommendation indicated that the applicant had been convicted by civil
authorities for disorderly conduct in Killen, Texas on 18 May 1974.  He was
fined $17.50 by the Municipal Court of Killeen.

10.  On 25 June 1974, the separation authority approved the separation,
waived rehabilitation requirements, and directed issuance of a General
Discharge Certificate.

11.  The applicant was discharged in pay grade E-2 on 23 July 1974 under
the provisions of Army Regulation 635-200, paragraph 13-5b(3) by reason of
unsuitability – apathy, defective attitude or inability to expend effort
constructively.  He had completed 1 year, 10 months and 6 days of active
military service.

12.  There is no evidence of record which shows the applicant applied to
the Army Discharge Review Board (ADRB) within its 15-year statute of
limitations.

13.  Chapter 13 of Army Regulation 635-200, applied to separation for
unfitness and unsuitability.  At that time, paragraph 13-4c provided for
the separation of individuals for unsuitability whose record evidenced
apathy (lack of appropriate interest), defective attitudes, and an
inability to expend effort constructively.  When separation for
unsuitability was warranted, an honorable or general discharge was issued
as determined by the separation authority based upon the individual’s
entire record.

14.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.

15.  The U.S. Army does not have, nor has it ever had, a policy to
automatically upgrade discharges.  Each case is decided on its own merits
when an applicant requests a change in discharge.  Changes may be warranted
if the Board determines that the characterization of service or the reason
for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative discharge proceedings under the
provisions of Army Regulation 635-200, paragraph 13-5b(3) were conducted in
accordance with law and regulations applicable at that time.

2.  The applicant's service record shows he received two Article 15s during
the period under review.  In addition, his records show he had received
several adverse counseling statements and had been convicted by civil
authorities for disorderly conduct.

3.  The applicant's overall military service did not meet the standards of
acceptable conduct and performance of duty for Army personnel sufficient to
warrant an honorable discharge.  Therefore, the applicant's record of
service is insufficiently meritorious to warrant an upgrade to honorable.

4.  Although the applicant contends that he was told that his discharge
would become honorable 10 years after his release from active duty, there
is no policy or regulation within the Army which allows automatic upgrading
of discharges.

5.  There is no apparent error, injustice, or inequity on which to base
recharacterization of his discharge to honorable.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 July 1974; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 22 July 1977.  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

JH______  TO______  PM______  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.




                                  James Hise____________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002481                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]