RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          25 October 2005
      DOCKET NUMBER:  AR20050003538


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Mr. Jose Martinez                 |     |Member               |
|     |Ms. LaVerne Douglas               |     |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 be upgraded to
honorable.

2. The applicant states he was forced out "with good reason and conduct.”

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 21 January 1976.  The application submitted in this case is
dated 1 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 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.  The applicant enlisted on 31 May 1974 for a period of 3 years.  He
successfully completed basic combat training and advanced individual
training in military occupational specialty 76V (equipment storage
specialist).

4.  On 23 May 1975, nonjudicial punishment was imposed against the
applicant for leaving his guard post early and failing to obey a lawful
order.  His punishment consisted of a forfeiture of pay, restriction and
extra duty.

5.  On 16 September 1975, nonjudicial punishment was imposed against the
applicant for disobeying a lawful order and failure to repair.  His
punishment consisted of a forfeiture of pay, restriction, and extra duty.

6.  On 9 January 1976, the applicant was notified of his pending separation
under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-37,
under the Expeditious Discharge Program for failure to maintain acceptable
standards for retention.  The unit commander recommended separation with a
general discharge and cited the applicant's four nonjudicial punishments
(he stated that the applicant had two company grade Article 15s for failing
to obey a lawful order and failure to repair and two field grade Article
15s for disrespect and failure to repair), poor deportment and performance
of duty, negative attitude, and lack of military bearing and initiative.
7.  On 9 January 1976, the applicant acknowledged notification of his
proposed discharge, he acknowledged that he might expect to encounter
substantial prejudice in civilian life if issued a general discharge and
that he had been provided an opportunity to consult with counsel, and he
elected not to make a statement on his behalf.

8.  On 9 January 1976, the separation authority approved the recommendation
for separation and directed that the applicant be furnished a general
discharge.

9.  Accordingly, the applicant was discharged on 21 January 1976 with a
general discharge under the provisions of Army Regulation 635-200, chapter
5, paragraph 5-37, under the Expeditious Discharge Program for failure to
maintain acceptable standards for retention.  He had served 1 year, 7
months, and
21 days of total active service.

10.  There is no evidence in the available records which shows the
applicant applied to the Army Discharge Review Board within its 15-year
statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel from the Army.  Paragraph 5-37 of this
regulation, in effect at the time, provided that members who had
demonstrated that they could not or would not meet acceptable standards
required of enlisted personnel in the Army would be expeditiously
eliminated from military service before a board or punitive action became
necessary.  Individuals discharged under the provisions of this paragraph
would be awarded an honorable or general discharge.

12.  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.  Since the applicant's record of service included at least two
nonjudicial punishments, his record of service did not meet the standards
of acceptable conduct and performance of duty for Army personnel.
Therefore, the applicant's record of service is insufficiently meritorious
to warrant an honorable discharge.

2.  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.

3.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

4.  Records show the applicant should have discovered the alleged injustice
now under consideration on 21 January 1976; therefore, the time for the
applicant to file a request for correction of any injustice expired on 20
January 1979.  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

JA______  JM______  LD_____  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 Anderholm_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050003538                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051025                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19760121                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 5                    |
|DISCHARGE REASON        |Expeditious Discharge Program           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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