RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        4 October 2005
      DOCKET NUMBER:  AR20050004546


      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             |
|     |Mrs. Victoria A. Donaldson        |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Mr. Larry C. Bergquist            |     |Member               |
|     |Ms. Carmen Duncan                 |     |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 discharge be upgraded.

2.  The applicant states his rehabilitation for alcoholism was
insufficient.

3.  The applicant provided a letter from a chaplain in support of this
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 2 December 1975, the date of his discharge from active
duty.  The application submitted in this case is dated 15 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 June
1974 for a period of three years.  He was trained in, awarded and served in
military occupational specialty (MOS) 11B10 (Rifleman) and the highest rank
he attained while serving on active duty was private/pay grade E-2.

4.  The applicant’s records show he received the National Defense Service
Medal and the Marksman M-16 Rifleman Badge.

5.  The record reveals a disciplinary history which includes his acceptance
of nonjudicial punishment (NJP) under the provisions of Article 15 of the
Uniform Code of Military Justice (UCMJ) on the following three separate
occasions for the offenses indicated:  20 September 1974, for without
authority absenting himself from his unit on 14 September 1974; 9 October
1974, for failure to go to his appointed place of duty on 5 October 1974;
and 25 July 1975 for being disrespectful in language to a superior non-
commissioned officer on 9 May 1975 and for assaulting a fellow Soldier with
an open hand.

6.  On 28 October 1975, charges were preferred against the applicant for
six specifications of failure to go to his appointed place of duty,
willfully disobeying a lawful order, and being disrespectful in language to
a superior non-commissioned officer.

7.  On 19 October 1975, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
maximum permissible punishment authorized under the UCMJ, the possible
effects of a discharge under other than honorable conditions, and of the
procedures and rights that were available to him.  Subsequent to receiving
this legal counsel, the applicant voluntarily requested discharge for the
good of the service, in lieu of trial by court-martial.

8.  In his request for discharge, the applicant indicated that he
understood that by requesting discharge, he was admitting guilt to the
charges against him, or of a lesser included offense, that also authorized
the imposition of a bad conduct or dishonorable discharge.  He further
acknowledged he understood that if his discharge request was approved, he
could be deprived of many or all Army benefits, that he could be ineligible
for many or all benefits administered by the Department of Veterans Affairs
(VA), and that he could be deprived of his rights and benefits as a veteran
under both Federal and State law.

9.  On 14 November 1975, the separation authority approved the applicant’s
request for discharge and directed that he receive an Undesirable
Discharge.  On 2 December 1975, the applicant was discharged accordingly.
The DD Form 214 he was issued confirms he completed a total of 1 year,
5 months, and 4 days of creditable active military service.

10.  On 17 March 1981, the Army Discharge Review Board (ADRB) denied the
applicant's request for upgrade of his undesirable discharge.  The ADRB
unanimously determined that the undesirable discharge was proper.

11.  The applicant was notified of the ADRB decision by a letter dated 10
April 1981.

12.  There is no evidence in the available records which show the applicant
was treated for or diagnosed with an alcohol abuse addiction or that he
sought treatment for an alcohol abuse addiction.

13.  The applicant provided an undated letter of support from a chaplain
from the Denver Rescue Mission.  The chaplain stated he has known the
applicant for about four years and that he felt privileged to know him.  He
continued that the applicant was extremely honest, hardworking, and willing
to take on additional responsibilities.  He concluded that it had been
extremely gratifying to see the positive progress in the applicant's
character and actions.

14.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-
martial.  An undesirable discharge was normally considered appropriate.

15.  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.

16.  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.

17.  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 applications 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
calculating the 3-year time limit from the date of exhaustion in any case
where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his Undesirable Discharge should be upgraded
because his rehabilitation for alcoholism was insufficient.

2.  There is no evidence, and the applicant has provided insufficient
evidence, that shows he suffered from or received treatment for alcohol
dependency during his military service or that alcohol dependency was the
cause of his indiscipline and subsequent separation.  Therefore, this
contention is without merit.

3.  The evidence of record confirms the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, he voluntarily requested
discharge from the Army in lieu of trial by court-martial.  All
requirements of law and regulation were met, and the rights of the
applicant were fully protected throughout the separation process.  Further,
the applicant’s discharge accurately reflects his overall record of
service.

4.  The applicant's record of service included three nonjudicial
punishments for various offenses including failure to report to his place
of duty, absenting himself from his unit, and being disrespectful in
language to a superior non-commissioned officer.

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 also renders his service
unsatisfactory. Therefore, he is not entitled to either a general discharge
or an honorable discharge.

6.  In order to justify correction of a military record the applicant must
show, 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.

7.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 10 December 1971.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 9 December 1974.  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

_MM_____  __CD___  _LB____  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.




                                         __Mark D. Manning____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004546                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/10/08                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1975/12/02                              |
|DISCHARGE AUTHORITY     |AR . 635-200. . . .                     |
|DISCHARGE REASON        |Chap 10                                 |
|BOARD DECISION          |Deny                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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