RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        2 August 2005
      DOCKET NUMBER:  AR20050004367


      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. Yvonne Foskey                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |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 under other than honorable conditions
discharge be upgraded to honorable.

2.  The applicant states, in effect, that he was young and made some
mistakes in his life while serving in the Army just after the Vietnam War.
He further states, in effect, that he would now like to apologize for those
mistakes.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 23 October 1975, the date of separation from active duty.  The
application submitted in this case is dated 21 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 service personnel records show that he enlisted in the
Army National Guard on 23 January 1975.

4.  Records show that, on 28 March 1975, the applicant was ordered to 18
weeks active duty.

5.  Records show that the applicant completed basic individual training on
22 May 1975 and that he was assigned to advanced individual training on
23 May 1975.

6.  Records show that on 6 June 1975, nonjudicial punishment was imposed
against the applicant for failure to obey a lawful order given by his
superior.  His punishment consisted of reduction to grade of private grade
E-1, forfeiture of $75.00 for one month, and 10 days extra duty with
restriction to company area for 10 days to run concurrently.
7.  Records show that on 16 June 1975, nonjudicial punishment was imposed
against the applicant for failure to go to appointed place of duty.  His
punishment consisted of forfeiture of $75.00 per month for one month, and
14 days of extra duty with 14 days restriction to company area to run
concurrently.

8.  Item Number 44 on DA Form 20 (Enlisted Qualification Record) shows that
the applicant was absent without leave (AWOL) from 6 July 1975 through
25 July 1975, total of 20 days.

9.  Records show on 25 September 1975, the applicant was placed in pre-
trial confinement.

10.  Records show on 26 September 1975, DD Form 458 (Charge Sheet) was
completed referring the applicant for trial by Special Court-Martial based
on charges of assault on another soldier, AWOL, breaking restriction and
leaving company area.

11.  The applicant’s records show that, on 30 September 1975, he consulted
with counsel and requested a discharge for the good of the service in lieu
of trial by court-martial under the provisions of chapter 10 of Army
Regulation 635-200 (Active Duty Enlisted Administrative Separations).
Counsulting counsel also certified that he had advised the applicant of the
basis for the contemplated trial by court-martial under circumstances which
could lead to a bad conduct or dishonorable discharge, of the effects of
the request for discharge, and the rights available to the applicant.

12.  On 30 September 1975, the applicant signed his request for discharge
which showed that he was making the request under his own free will and
acknowledged guilt to the offenses charged; that he was afforded the
opportunity to speak with counsel; that he was advised he may be furnished
an Undesirable Discharge Certificate; 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.

13.  On 3 October 1975, the applicant’s unit commander recommended the
applicant’s discharge under other than honorable conditions.

14.  On 7 October 1975, the applicant’s battalion commander recommended the
applicant receive an Undesirable Discharge Certificate.

15.  On 9 October 1975, the applicant’s brigade commander recommended that
the applicant be issued an Undesirable Discharge Certificate.

16.  On 17 October 1975, the brigadier general in command of Fort Jackson,
South Carolina, approved the separation under the provisions of Army
Regulation 635-200, by reason of unfitness due to record of misconduct, and
directed that he receive an under other than honorable conditions discharge
with an Undesirable Discharge Certificate.

17.  The applicant’s DD Form 214 (Certificate of Release) shows that the
applicant was discharged under other than honorable conditions on 23
October 1975 under the provisions of Army Regulation 635-200, chapter 10,
for the good of the service in lieu of court-martial.  He had served on
active duty from
28 March 1975 to 23 October 1975 and had 20 days of lost time.

18.  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.

19.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of that regulation provides,
in pertinent part that a member who has committed an offense or offenses
for which the authorized punishment includes a punitive discharge may at
any time after the charges have been preferred, submit a request for
discharge for the good of the service in lieu of trial by court-martial.  A
discharge under other than honorable conditions is normally considered
appropriate. However, at the time of the applicant's separation the
regulation provided for the issuance of an undesirable discharge.

20.  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.

21.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the soldier’s separation specifically allows such
characterization
22.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the
3 year limit on filing to the Army Board for Correction of Military Records
(ABCMR) should commence on the date of final action by the ADRB.  In
complying with this decision, the ABCMR has adopted the broader policy of

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he would like to have his under other than
honorable discharge upgraded to an honorable discharge.

2.  Records show the applicant voluntarily requested separation under the
provisions of chapter 10 of Army Regulation 635-200 for the good of the
service to avoid trial by court-martial.  In so doing, the applicant
admitted guilt to the offense charged and accepted discharge under other
than honorable conditions in lieu of trial by court-martial.

4.  Evidence of record shows, that all requirements of law and regulation
were met and the rights of the applicant were fully protected throughout
the separation process.

5.  The applicant contends that his discharge should be upgraded because he
made some mistakes while serving in the military due to his age.  It is
noted that the applicant was 18 at the time of his offenses.  However,
there is no evidence which indicates that he was any less mature than any
other soldiers of the same age who successfully completed military service.
Therefore, his contention is insufficient as a basis for an upgrade of his
discharge.

6.  Army Regulation clearly provides that military discharges are based on
the quality of the Soldier’s military service in accordance with published
standards.  The applicant’s acts of indiscipline and 20 days of AWOL are
not acceptable conduct or performance which merit for an honorable
discharge.

7.  The applicant’s record of service shows a Special Court-Martial for
assault, AWOL, and disobeying a lawful order.  His record of service shows
that the applicant only completed 6 months of service and accrued 20 days
of lost time.  In view of these facts, the applicant’s service was not
satisfactory and he is, therefore, not entitled to a general discharge.
9.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 October 1975; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
22 October 1978.  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

__JRM__  _WDP___  __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.




                                  William D. Powers
                                   CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004367                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005/08/02                              |
|TYPE OF DISCHARGE       |UOTHC,                                  |
|DATE OF DISCHARGE       |1975/10/23                              |
|DISCHARGE AUTHORITY     |AR635-200 . . . . .                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]