RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 November
      DOCKET NUMBER:  AR20050003182


      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. Antoinette Farley             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 discharge be upgraded.

2.  The applicant, in effect, states that he was turning himself around and
getting his mind on being a Soldier instead of constantly worrying about
his sick mother. He adds that he did not think he was a bad Soldier and was
surprised when his commanding officer called him into his office and told
him of the discharge.

3.  The applicant provides a self-authored letter, dated 28 January 2005 as
supporting evidence in his case.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 8 February 1978, the date of his separation.  The
applicant's application was received on 3 March 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 record shows he enlisted in the Regular Army on
29 December 1975.  After completion of basic and advanced individual
training, he was awarded primary military occupational specialty 76D10
(Material Supplyman) and a secondary MOS 76P20 (Stock Control and
Accounting Specialist).

4.  The applicant's service records reveal a disciplinary history that
includes non-judicial punishment (NJP) under the provisions of Article 15
of the Uniform Code of Military Justice (UCMJ) for the following offenses
as indicated:  on 20 May 1976, for being absent without leave (AWOL), from
17 May 1976 through 18 May 1976; for being AWOL from 1 June 1976 through 4
June 1976; for being AWOL from 2 November 1976 through 5 November 1976; for
being AWOL from 5 July 1977 through 7 July 1977; on 7 October 1977, for
failing to obey a direct order to wear his field uniform on 3 October 1977;
on 2 November 1977, for wrongful
possession of a controlled substance: [Marijuana] on 22 October 1977 and
failure to go at the time prescribed to his appointed place of duty on 25
October 1977; and on 6 December 1977, for disobeying a lawful order on 13
November 1977.

5.  A DA Form 4126 (Bar to Enlistment/Reenlistment Certificate), dated 13
July 1977, shows the Headquarters Company commander of the 24th Infantry
Division, Material Management Center, Hunter, Georgia, recommended the
applicant be barred from enlistment/reenlistment.  The intermediate
commanders concurred.

6.  The approval authority approved the bar to reenlistment on 13 July
1977.  The letter directed the applicant’s command to notify him of the
action, inform him of his non-promotable status while the bar is in effect,
and to place the original correspondence in the permanent part of his
Military Personnel Records Jacket.  Item 4 (Assignment Considerations) of
the applicant's DA Form 2-1-1 (Personnel Qualification Record) is to
include the remark "Not recommended for further service".

7.  A DA Form 2496 (Disposition Form), dated 7 November 1977, shows the
applicant was required to undergo an "Elimination Chapter 13 medical
examination" by the Tuttle Army Health Clinic.  On 10 November 1977, the
result of the medical examination determined the applicant to be fit for
separation.

8.  All of the applicant's discharge processing documents were not
available in his military service records.  However, his service record
shows he elected to receive a separate document explaining the narrative
reason for his separation from the United States Army, a narrative
description of the authority for his separation, the reenlistment code, and
a copy of his DD Form 214 (Report of Separation from Active Duty).  His
service record also shows he signed a statement of Medical Condition, dated
2 February 1978, which shows three days prior to his separation there had
been no change in his medical condition.

9.  Headquarters, 24th Infantry Division Orders 24-38, dated 2 February
1978, assigned the applicant to Southeastern U.S. Army Garrison Transfer
Point, Fort Stewart, Georgia for separation processing effective 8 February
1978.

10.  The applicant's records also show he was issued a letter from his
command informing him of the reason for his separation from active duty on
8 February 1978.  The letter states the applicant’s separation was for
misconduct and frequent incidents of a discreditable nature with military
authorities.


11.  The applicant’s DD Form 214, dated 8 February 1978, shows he was
separated on 8 February 1978, under the provisions of chapter 13-5a (1) of
Army Regulation 635-200, by reason of unfitness.  He had served 2 years, 1
month, and 1 day of active duty with 9 days of lost time due to AWOL.

12.  In his statement, the applicant admits to making some mistakes while
in the military.  He states he was immature, carefree, young with a
negative attitude, and  worried about his mother's health.  He further
states he served 2 years of his 3 year enlistment.  He adds since receiving
an under other than honorable discharge back in 1978, he has really applied
himself.  He states he is married with two children and about 3 years ago
was diagnosed with diabetes, liver and circulation problems, and stays sick
when he is unable to afford his medication.  He also thinks after being
discharged 26 years ago, he has suffered enough and for whatever reason he
was given the damaging discharge.  He states the reason he took so long
before trying to upgrade his discharge was due to bad information from
veterans.  He continues by saying veterans told him after 10 to 15 years
his type of discharge would automatically turn into a general discharge. He
adds that his mother died at the young age of 70 and his family has no
health plan.  He continues by saying now at 51 he hopes God will help him
through the awful decisions he made while in the military.  He states he
would like to be able to go the veteran's hospital or to get a loan from
the government to put his family in a nice home someday.

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

14.  Army Regulation 635-200, dated 15 July 1966 and with changes 1 through
45, was in effect at the time the applicant's separation processing was
initiated in November 1977.  This version of the regulation set forth the
policy and prescribed the procedures for administrative separation of
enlisted personnel, and Chapter 13 governed separation for unfitness and
unsuitability.  Paragraph 13-5(a) (1) of this regulation specifically
authorized separation for unfitness for frequent incidents of a
discreditable nature with civil and military authorities and paragraph 13-
31 stated that an undesirable discharge was normally considered appropriate
when separation for unfitness was warranted.

15.  Prior to the applicant's discharge from the Army, a new version of
Army Regulation 635-200 became effective on 1 February 1978.  Chapter 13 of
this regulation provided for separation of enlisted personnel for
unsuitability.  This regulation further stipulated that a service member
separated for unsuitability could only be issued an honorable or a general
discharge.  However, the implementing instructions for this new version of
Army Regulation 635-200 stated:  "Separation proceedings initiated prior to
the effective date indicated above will be processed to completion
according to regulations and changes in effect at the time of initiation."
As a result, the applicant's separation processing was properly conducted
in accordance with Army Regulation 635-200, dated 15 July 1966 and with
changes 1 through 45.

16.  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 contends that his discharge should be upgraded because he
was confused, young, had personal problems, made some bad choices at the
time, and is now ill and in need of veterans benefits.

2.  Evidence of records show the applicant's was 22 years old at the time
of his enlistment into the Army and that he was 24 years old at the time
the offenses occurred.  There is no evidence that indicates that the
applicant was any less mature than other Soldiers of the same age who
successfully completed military service.

3.  In the absence of evidence to the contrary, it is presumed that all
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout the separation process.

4.  The applicant’s record of service shows he received eight nonjudicial
punishments for being AWOL for 9 days, twice failing to obey orders, and
for wrongful possession of a controlled substance.  As a result, his
service was not satisfactory.

5.  Based on this record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for army personnel.  This misconduct and lost time also renders his service
unsatisfactory. Therefore, he is not entitled to either a general discharge
or an honorable discharge.
6.  Accordingly, the type of discharge directed and the reason for
discharge are appropriate considering all the facts of the case.

7.  The ABCMR does not upgrade discharges solely for the purpose of making
the applicant eligible for veterans or medical benefits.

8.  The applicant’s contention regarding his post service achievements and
conduct are duly noted; however, good post service conduct alone is not a
basis for upgrading a discharge, particularly in view of the number of
offenses in this case.

9.  There is no evidence of record and the applicant provides none to show
that his record is in error or unjust.

10.  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.

11.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 February 1978 the date of his
separation; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 7 February 1981.  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

_MJF___  _LDS___  _MKP____  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.




                                      _M. K. Patterson_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050003182                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051110                                |
|TYPE OF DISCHARGE       |Misconduct                              |
|DATE OF DISCHARGE       |19780208                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |CH13-5a(1),                             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Director                                |
|ISSUES         1.       |A.                                      |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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