RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 October 2005
      DOCKET NUMBER:  AR20050002821


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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 (GD) (under honorable
conditions) be upgraded to honorable in order to obtain health benefits
(Veterans Administration [VA] benefits).

2.  The applicant states, in effect, that his GD should be upgraded in
order for him to obtain VA benefits.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation
from Active Duty) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 23 November 1976, the date of his discharge.  The application
submitted in this case is dated 28 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's military records show he entered active duty (AD) on
17 February 1976, as a corrections specialist (95C).  He was promoted to E-
2
on 17 June 1976.

4.  On 28 October 1976, the applicant’s commander notified him that he was
initiating action to separate him from the service under the provisions of
Army Regulation 635-200, paragraph 5-37, Expeditious Discharge Program
(EDP).  He cited, as the basis for his recommendation, the applicant’s lack
of motivation and self discipline.  The commander stated that since his
assignment to the United States Disciplinary Barracks (USDB) on 11 July
1976, his record of immature actions was totally unacceptable for a Soldier
in the U.S. (US) Army.  He was counseled by the noncommissioned officer in
charge (NCOIC) of the Security Branch, on 23 August 1976, for failing to
report to duty on that same date.  The
very next day, 24 August 1976, he again failed to report for duty.  The
second


offense had resulted in the initiation of proceeding under Article 15,
Uniform Code       of Military Justice (UCMJ).  The commander also stated
that in view of his unsatisfactory performance of duty and the negative
results obtained from counseling, it was clear to him that the applicant
had no potential for further service in the Armed Forces.

5.  The applicant's counseling statements and Article 15 are unavailable
for review.

6.  On the same day, the applicant waived his rights, consented to the
proposed discharge action, and elected not to submit a statement in his own
behalf.

7.  On 18 November 1976, the separation authority approved the
recommendation for the applicant's discharge and directed that he be
furnished a GD certificate.  The applicant was discharged on 23 November
1976.  He had a total of 9 months and 7 days of creditable service.

8.  There is no evidence that the applicant applied to the Army Discharge
Review Board for an upgrade of his discharge within its 15-year statute of
limitations.

9.  The Department of the Army began testing the EDP in October 1973.  In a
message dated 8 November 1974, the Deputy Chief of Staff for Personnel
announced the expansion of the EDP.  The program provided for the
separation of Soldiers whose acceptability, performance of duty, and/or
potential for continued effective service fell below the standards required
for retention in the US Army.  Soldiers could be separated under this
program when subjective evaluation of their commanders identified them as
lacking qualities for continued military service because of attitude,
motivation, self-discipline, inability to adapt socially or emotionally, or
failure to demonstrate promotion potential.

10.  Army Regulation 635-200, chapter 5, in effect at the time, set forth
the basic authority for the separation of enlisted personnel for the
convenience of the government.  Separation under this chapter includes
provisions for discharging Soldiers for a variety of reasons including
those who fail to maintain acceptable standards for retention (EDP).

11.  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 (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

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 for that separation were
appropriate considering all of the facts of the case.

3.  The Board does not change the character of service for the purpose of
enabling former service members to obtain eligibility for benefits.  The
Board has no authority to direct the VA to award benefits.  Since most VA
benefits are based on an individual's service, eligibility depends on the
circumstances.  The applicant is advised to contact the nearest VA office
to seek their assistance in determining his rights and entitlements.

4.  There is no evidence in the applicant's records, and the applicant has
provided none, to show that he applied for an upgrade of his discharge to
the ADRB within its 15-year statute of limitations.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 November 1976; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 22 November 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

JBG____  _JTM____  _JRM____  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.




                                  ____John T. Meixell______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002821                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051020                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19761123                                |
|DISCHARGE AUTHORITY     |AR 625-200, chapter 5-37                |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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