RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 November 2005
      DOCKET NUMBER:  AR20050004337


      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. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Robert L. Duecaster           |     |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 discharge, under honorable
conditions be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he was told that his discharge
would be automatically upgraded after 1 year and that the reason he
received a discharge under honorable conditions was because while on leave
he was robbed, his wallet was taken which included all his money and his
airplane ticket.  He reported the incident to military authorities 3 days
after the incident and after borrowing money from a friend, he returned to
military control.  He was charged for 5 days of being absent without leave
(AWOL) and discharged.  He further states, that he was discharged for being
AWOL for 5 days and that has bothered him for many years.  Since being
discharged, he has tried to get benefits and was told that he was
ineligible because of his discharge.  He has tried to get his discharge
upgraded and the only thing that he received was a copy of his discharge.
He was told to write Senator John McCain’s’ office to see if they would
help him.  The Senator’s office sent him the necessary paper work, as well
as the address for mailing.

3.  The applicant provides a self-authored letter in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 3 June 1977.  The application submitted in
this case is dated
11 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 that he enlisted in the Regular Army for 4
years and entered active duty on 1 March 1976.  He successfully completed
basic combat training and advanced individual training (AIT) and upon
completion of AIT, he was awarded military occupational specialty (MOS)
05E10 (Voice Radio Operator).  The highest grade he attained was pay grade
E-2.
4.  On 6 December 1976, the applicant accepted nonjudicial punishment (NJP)
under the provisions of Article 15, for leaving his appointed place of duty
without proper authority.  His imposed punishment was a forfeiture of
$50.00 pay, 7 days restriction and extra duty.

5.  On 6 January 1977, the applicant accepted NJP, for six different
occasions of leaving his appointed place of duty without proper authority
and for two occasions of breaking restriction.  His imposed punishment was
a reduction to pay grade E-2, a forfeiture of $87.00 pay and 7 days in
correctional custody.

6.  The record also shows that the applicant was counseled on numerous
occasions for failure to repair; his NJP’s and for three occasions of
making false statements.

7.  On or about 17 April 1977, the applicant was reported for being AWOL.
On or about 23 April 1977, the applicant surrendered to military
authorities.  The applicant’s military record indicates that he accepted
NJP for being AWOL for
5 days, however, the particulars are missing from his file.

8.  On 10 May 1977, the applicant was notified by his unit commander that
separation action under Expeditious Discharge Provisions (EDP) contained in
paragraph 5-37 of Army Regulation 635-200 was being initiated against him,
and that a GD was being recommended.  The reasons for the separation action
cited by the unit commander were the applicant’s poor attitude; his lack of
motivation; his lack of self-discipline; his inability to adapt
emotionally; his failure to demonstrate promotion potential and his record
of NJP’s and counseling.  The applicant was also informed that he had the
right to decline discharge and to submit statements in his own behalf.

9.  The applicant acknowledged that he had received the separation
notification and indicated that he was voluntarily accepting discharge from
the Army and he waived his right to submit a statement in his own behalf.
He also acknowledged that he understood that if he received a GD, he could
encounter substantial prejudice in civilian life, and he acknowledged that
he had been provided the opportunity to consult with a Judge Advocate
General Corps (JAGC) officer.

10.  The applicant’s unit commander completed a second endorsement
confirming that he had personally counseled the applicant concerning the
discharge.  On 20 May 1977, the separation authority approved the
separation action and directed that the applicant receive a GD.  On 3 June
1977, the applicant was discharged accordingly.
11.  The DD Form 214, issued to the applicant on the date of his discharge,
confirms that he was separated under the provisions of paragraph 5-37, Army
Regulation 635-200, by reason of the EDP.  It also shows that at the time,
he had completed a total of 1 year, 2 months and 28 days of active
military.

12.  There is no indication in the record that the applicant applied for an
upgrade of his discharge to the Army Discharge Review Board within its 15
year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 5, paragraph 5-37, then in
effect, provided the policy and outlined the procedures for separating
individuals under the Expeditious Discharge Program (EDP).  The EDP
provided for the separation of Soldiers who demonstrated that they could
not or would not meet acceptable standards required of enlisted personnel.
An HD or GD could be issued under this program.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered and were found to
be insufficient in merit.  The evidence of record confirms that the
applicant’s discharge processing was accomplished in accordance with the
applicable regulation in effect at the time.  All requirements of law and
regulation were met and the applicant’s rights were protected throughout
the separation process.  The record further confirms that the applicant
voluntarily consented to the discharge and that his discharge accurately
reflects his overall short and undistinguished record of service.

2.  The applicant contends that he was told that his discharge would be
automatically upgraded within one year of his separation were carefully
considered.  However, the 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 submits an application to the Army Discharge
Review Board or this Board requesting a change in discharge.  Changes may
be warranted if either Board determines that the characterization of
service or the reason for discharge or both were improper or inequitable.


3.  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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 3 June 1977.  Therefore, the time for
him to file a request for correction of any error or injustice expired on 2
June 1980.  However, he 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

___SK __  __JTM __  __RLD __  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.




                                  ____   Stanley Kelley_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004337                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051115                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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