RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           1 December 2005
      DOCKET NUMBER:  AR20050006820


      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. John T. Meixell               |     |Chairperson          |
|     |Ms. Maribeth Love                 |     |Member               |
|     |Mr. Richard G. Sayre              |     |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 general, under honorable
conditions discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that at the time of his separation he
was not informed of the ramifications his discharge would have on him
obtaining employment with Federal Government.  He further states that
recently, he was denied a job with the United States Postal Service because
of the reasons given for his GD.

3.  The applicant provides the following documents in support of his
application:  Separation Document (DD Form 214); Request Pertaining to
Military Records
(SF 180); and Department of Veterans Affairs (VA) Letter.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 25 June 1973.  The application submitted in this case is
dated
23 April 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 and
entered active duty on 26 July 1972.  He was trained in, awarded and served
in military occupational specialty (MOS) 11H (Infantryman Direct Fire
Crewman), and the highest rank he attained while serving on active duty was
private (PV2).

4.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.  The record reveals
a disciplinary history that includes his being formally counseled on
several occasions between
10 November 1972 through 26 May 1973, for a myriad of disciplinary
infractions and poor duty performance.

5.  On 31 May 1973, the unit commander referred the applicant for a mental
health evaluation.  He stated the applicant had an extreme case of apathy
and that he did just enough to keep from having a disciplinary record, but
was a constant problem.  The examining psychiatrist labeled the applicant's
behavior as suspicious.  He further concluded the applicant was capable of
distinguishing right from wrong and adhering to the right.  He also found
the applicant was responsible for his actions and possessed the mental and
emotional capacity to understand and participate in a board, or other legal
proceedings.

6.  On 8 June 1973, the applicant’s platoon leader, a first lieutenant and
his first sergeant prepared statements supporting the applicant’s
discharge.  In these statements, both members of the chain of command
indicated they had counseled the applicant about his attitude and apathetic
duty performance on numerous occasions.  They also stated that the
applicant  did just enough work to avoid receiving nonjudicial punishment
(NJP) under the provisions of Article 15 of the Uniform Code of Military
Justice (UCMJ), but that he still managed to cause trouble.  They further
stated that after discussing a rehabilitation transfer with him, the
applicant indicated that if he were transferred, he would go absent without
leave (AWOL) and cause additional problems in order to be separated from
the Army.

7.  On 8 June 1973, the applicant submitted a written statement requesting
release from the Army so that he could better support his family.  He
stated that it would be better for him and the Army if he were released.
He further threatened to go AWOL if he were moved to another unit, and
would cause problems that result in him being put in the stockade.

8.  The unit commander notified the applicant that he intended to initiate
separation action on him under the provisions of chapter 13, Army
Regulation 635-200, by reason of unsuitability (Apathy, lack of appropriate
interest and defective attitudes).  The unit commander cited the
applicant’s inability to expend effort constructively as the reason for
taking the action.

9.  On 12 June 1973, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation, its effects, and of
the rights available to him.  Subsequent to this counseling, the applicant
waived his right to have his case considered by a board of officers, his
right to a personal appearance before a board of officers, and his right to
consulting counsel.  He also elected not to submit a statement in his own
behalf.  During this counseling, the applicant acknowledged that he
understood he could encounter substantial prejudice in civilian life if he
received a GD.
10.  On 18 June 1973, the separation authority approved the applicant’s
separation and directed that he receive a GD.  On 25 June 1973, the
applicant was discharged accordingly.  The separation document (DD Form
214) he was issued confirms he completed 10 months and 29 days of active
duty service on the enlistment under review and that he held the rank of
PV1 at the time of his separation.  It also shows he earned the National
Defense Service Medal and Sharpshooter Qualification Badge with Rifle Bar
during his active duty tenure.

11.  There is no indication in the record that the applicant applied to the
Army Discharge Review Board (ADRB) for an upgrade of his discharge within
the ADRB’s 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 13, in effect at the time,
provided the authority for the separation of enlisted personnel for
unsuitability based on inaptitude, personality disorder, apathy, or
homosexual tendencies.  Members separated under these provisions could
receive either an HD or GD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was not properly informed of the
ramifications his discharge would have on his ability to gain employment
with the Federal Government and the supporting evidence he provided were
carefully considered.  However, there is insufficient evidence to support
this claim.

2.  The evidence of record shows the applicant displayed extreme apathy in
the performance of his duty and was disruptive to his unit.  It also shows
he failed to respond to counseling and refused rehabilitation, and instead
threatened to go AWOL if he were not separated from the Army.  The record
further shows the applicant consulted with legal counsel and was fully
advised on the possible effects of his discharge during his separation
processing.  During this legal counseling, the applicant acknowledged that
he could encounter substantial prejudice in civilian life in the event he
received a GD.

3.  The evidence of record further confirms the applicant’s separation
processing was accomplished in accordance with the applicable regulation.
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
undistinguished service.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 June 1973.  Therefore, the time for
him to file a request for correction of any error or injustice expired on
24 June 1976.  He failed to 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

___JTM__  __ML___  ___RGS_  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.




            ____John T. Meixell _______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050006820                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-12-01                              |
|TYPE OF DISCHARGE       |GD,                                     |
|DATE OF DISCHARGE       |1973/06/25                              |
|DISCHARGE AUTHORITY     |AR635-200                               |
|DISCHARGE REASON        |Chapter 13                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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