RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        4 August 2005
      DOCKET NUMBER:  AR20050004340


      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             |
|     |Mr. Stacy R. Abrams               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms. LaVerne M. 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 his undesirable upgraded to an honorable
discharge.

2.  The applicant states, in effect, that on his initial entry in the Army
he was a good Soldier and performed all his duties.  He further states, in
effect, that being young and silly was the reason he received nonjudicial
punishment.

3.  The applicant states, in effect, that he is older and he deserves
benefits based on his military service.

4.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 1 October 1975, the date of his separation from active duty.
The application submitted in this case is dated 7 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 service personnel records show he enlisted in the
Regular Army on 2 November 1973 for a period of 4 years.  He successfully
completed basic and advanced individual training and was awarded the
military occupational specialty 11B (Infantryman).

4.  On 25 October 1974, nonjudicial punishment was imposed against the
applicant for failure to go to his appointed place of duty on 21 October
1974.  His punishment consisted of forfeiture of $84.00 for one month and
restriction to the company area for 14 days.

5.  On 2 December 1974, nonjudicial punishment was imposed against the
applicant for failure to go to his appointed place of duty on 21 November
1974.  His punishment consisted of forfeiture of $91.00 for one month and
extra duty for 7 days.
6.  On 17 December 1974, nonjudicial punishment was imposed against the
applicant for being disrespectful in language toward a noncommissioned
officer on 22 November 1974.  His punishment consisted of forfeiture of
$75.00 for two months and restriction to the company area for 14 days.

7.  On 21 January 1975, nonjudicial punishment was imposed against the
applicant for failure to go to his appointed place of duty on 11 January
1975.  His punishment consisted of restriction to the company area for 7
days.

8.  On 18 June 1975, nonjudicial punishment was imposed against the
applicant for being absent without leave (AWOL) from the period 22 May 1975
through
2 June 1975 and from the period 17 June 1975 through 18 June 1975.  His
punishment consisted of reduction to private/pay grade E-1, forfeiture of
$89.00 for one month, extra duty and restriction to the company area for 14
days.

9.  On 18 July 1975, nonjudicial punishment was imposed against the
applicant for being AWOL from the period 30 June 1975 through 14 July 1975.
 His punishment consisted of forfeiture of $86.02 for one month, extra duty
and restriction to the company area for 14 days.

10.  On 16 September 1975, nonjudicial punishment was imposed against the
applicant for being AWOL from the period 2 August 1975 through
5 September 1975, and failure to go to his appointed place of duty twice on
14 September 1975.  His punishment consisted of forfeiture of $172.00 for
two months and restriction to the company area for 60 days.

11.  On 15 July 1975, the captain in command of Company A, 2nd Battalion,
19th Infantry [Fort Stewart, Georgia] notified the applicant of his
intention to recommend separation action against him for unfitness under
the provisions of chapter 13 of Army Regulation 635-200 (Active Duty
Enlisted Administrative Separations).  The unit commander stated the basis
for his action was the applicant's frequent incidents of a discreditable
nature with civil or military authorities.

12.  On 15 July 1975, records show the applicant acknowledged he was
advised of the basis for contemplated separation, its effects, and his
rights by his company commander.

13.  On 18 July 1975, the applicant was advised by counsel on the basis for
the contemplated action to separate him for unsatisfactory performance
under the
provisions of chapter 13 of Army Regulation 635-200.  The applicant
indicated that he understood that he may be deprived of many or all Army
benefits; that he may be ineligible for many or all Veterans Administration
benefits; that he may be deprived of his rights and benefits as a veteran
under both Federal and State law; and that he may expect to encounter
substantial prejudice in civilian life because of an undesirable discharge.
 He elected to make a statement on his behalf.

14.  In his statement the applicant contends he was an outstanding Soldier
before receiving his first nonjudicial punishment for something he claims
he did not do.  The applicants further states, he tried, but was unable to
overcome his misconduct and thought he could no longer serve effectively.
He further states, it would be beneficial to the Army and his country to
allow him to separate and be given an honorable discharge.

15.  On 30 July 1975, the captain in command of Company A, 2nd Battalion,
19th Infantry, [Fort Stewart, Georgia], recommended a discharge under the
provisions of chapter 13 of Army Regulation 635-200 by reason of unfitness.
 The company commander also requested waiver in accordance with paragraph 1-
18d of Army Regulation 635-200 as not being in the interests of the Army,
as it would not produce a quality Soldier.

16.  On 20 August 1975, the lieutenant colonel in command of 2nd Battalion,

19th Infantry recommended discharge under the provisions of chapter 13 of
Army Regulation 635-200 by reason of unfitness.  He further recommended a
counseling and rehabilitative transfer be waived.

17.  On 4 September 1975, the lieutenant colonel in command of the 1st
Brigade, 24th Infantry Division [Fort Stewart, Georgia] recommended
approval of discharge under the provisions of chapter 13 of Army Regulation
635-200 by reason of unfitness.  He further recommended a counseling and
rehabilitative transfer be waived.

18.  On 25 September 1975, the brigadier general in command of Fort
Stewart, Georgia, approved the recommendation for discharge under the
provisions of chapter 13 of Army Regulation 635-200 by reason of unfitness
and frequent incidents of a discreditable nature with civil and military
authorities.  The requirement for a rehabilitative transfer was waived in
accordance with paragraph 1-18d of Army Regulation 635-200 as not being in
the interests of the Army, as the Soldier would create serious disciplinary
problems.  The commander also directed that the applicant be issued an
Undesirable Discharge Certificate.

19.  The applicant's DD Form 214 (Certificate of Release or Discharge from
Active Duty) shows that he was discharged on 1 October 1975 in accordance
with the provisions of chapter 13 of Army Regulation 635-200.  The
applicant served 1 years, 9 months, and 1 day of active service.

20.  The applicant's DD Form 214 item 5 (c) shows he was separated with a
Separation Program Designator (SPD) Code of "JLB".  Army Regulation 635-5-1
(Separation Program Designator Code) in effect, at the time showed the SPD
Code "JLB", indicated a discharge for unfitness based on frequent incident
involvement of a discreditable nature with authorities, on the provisions
of paragraph 13-5a (1) of Army Regulation 635-200.

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

22.  Army Regulation 635-200, in effect at the time of the applicant's
separation, provided for discharge of enlisted personnel.  Chapter 13, of
this regulation governed separation for unfitness or unsuitability.
Separation for unfitness was appropriate for frequent incidents of a
discreditable nature with civil or military authorities; sexual perversion
including but not limited to lewd and lascivious acts, indecent exposure,
indecent acts with or assault on a child; drug addiction or the
unauthorized use or possession of habit-forming drugs or marijuana; an
established pattern of shirking; and an established pattern of dishonorable
failure to pay just debts or to contribute adequate support to dependents
(including failure to comply with orders, decrees or judgments) and
homosexual acts.  Paragraph 13-5a (1) provided specifically for discharge
for unfitness based on frequent incidents of a discreditable nature with
civil or military authorities.  When separation for unfitness was
warranted, an undesirable discharge was normally considered appropriate.

23.  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.

24.  Army Regulation 635-200, chapter 13, applied to separation for
unfitness and unsuitability.  At that time, paragraph 13-4c provided for
separation due to inaptitude, personality disorder, apathy, and
homosexuality.  The regulation requires that separation action will be
taken when, in the commander’s judgment, the individual will not develop
sufficiently to participate satisfactorily in further military training
and/or become a satisfactory soldier.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be
upgraded to an honorable based on his military service and his need for
benefits.

2.  Military records show the applicant's administrative separation was
accomplished in compliance with applicable regulation with no indication of
procedural errors that would tend to jeopardize his rights.

3.  Records show upon notification of separation and consultation with
counsel, the applicant submitted a statement in his own behalf and
indicated that it would be best for him to get out of active duty.  He also
acknowledged that he might lose all or many veterans benefits if he has
separated under other than honorable conditions.

4.  Based on the foregoing, the type of discharge and reason for separation
was appropriate considering all of the facts of this case.

5.  The applicant’s service records show instances of frequent incidents of
a discreditable nature with civil or military authorities, disobeying
lawful orders, and failure to report to his designated place of duty.  The
applicant’s records of service clearly show that his overall quality of
service did not meet the standards of acceptable conduct and performance of
duty for Army personnel.  Thus, the applicant is not entitled to an
honorable discharge.

6.  The applicant's service records show seven nonjudicial punishments and
over 46 days lost time.  Based on the applicant's numerous instances of
indiscipline, his military service is not considered satisfactory.
Therefore, he is not entitled to a general discharge.

7.  The records show that the applicant was over 18 years old when he
received seven nonjudicial punishments and accrued 46 days of lost time.
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.  Therefore, his argument that youth and immaturity caused his
indiscipline is not sufficient as a basis for upgrade of his discharge.
8.  By regulation, a discharge from the Army is based on the quality of the
Soldier's service in accordance with established standards.  The ABCMR does
not upgrade a discharge solely for the purpose of making an applicant
eligible for veteran benefits.

9.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 October 1975; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
30 September 1978.  The applicant did not file within the 3-year statue 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

___JEA  _  __RTD__  ___LMD _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 E. Anderholm___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004340                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050804                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19751001                                |
|DISCHARGE AUTHORITY     |AR635-200                               |
|DISCHARGE REASON        |CH 13                                   |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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