RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 November 2005
      DOCKET NUMBER:  AR20050007237


      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. Maria C. Sanchez              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Ms. Diane J. Armstrong            |     |Member               |
|     |Ms. Della R. Trimble              |     |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 discharge be upgraded.

2.  The applicant states that his DD Form 214 (Report of Separation from
Active Duty) shows 73 days of lost time; however, it does not show the
reason why he was absent without leave (AWOL).  He continues by stating the
following reasons for his absence; 1) his grandmothers passed away (both
raised him); 2) he was in a civilian jail for 31 days for driving while
intoxicated; and 3) his brother was killed in an automobile accident.

3.  The applicant further states, after his brother’s death, he lost focus
to better himself while in the Army.

4.  The applicant provides a one-page self-authored letter, dated 27 April
2005; a copy of two obituaries; and his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 9 August 1976, the date of his separation.  The application
submitted in this case is dated 27 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 enlisted in the Army on 15 March 1974 for a period of 3
years.  After completion of basic and advanced individual training, he was
awarded military occupational specialty 44A (Metalworking Apprentice) and
assigned to B Company, 701st Maintenance Battalion, Fort Riley, Kansas.

4.  Records contain a statement that shows the military police were
notified on 19 June 1974 that the applicant was confined in a civilian jail
for traffic violations committed on 18 June 1974.  This statement also
shows the military police
checked with the applicant's unit which listed him as AWOL.  This statement
further shows that the charges were dropped when the military police took
the applicant in their custody.

5.  The applicant's service records reveal a disciplinary history that
includes his acceptance of nonjudicial punishment (NJP) under the
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on
the following four separate occasions for the offenses indicated:  on 2
July 1974, for AWOL (24 June through 27 June 1974); on 3 September 1974,
for AWOL (26 August 1974 through 2 September 1974); on 13 April 1976, for
AWOL (6 April 1976 through 12 April 1976); and on 2 July 1976, for AWOL (21
June 1976 through 29 June 1976).

6.  Records contain a statement that shows on 28 April 1976, the applicant
was arrested by the Jefferson Sheriff Department for parole violation
(civil) and for AWOL (military).  This statement also shows that the
applicant was placed in civil confinement for 30 days on 28 April 1976.

7.  DA Form 3975 (Military Police Report), dated 3 June 1976, shows that
the applicant surrendered to civilian authorities for violation of the
civil charge and AWOL.  This form continues to show that on 28 May 1976,
the applicant was returned to military control, fined for $300.00, and
released without any other requirements.

8.  On 30 June 1976, the applicant was advised by counsel regarding his
contemplated administrative separation from military service under the
provisions of Chapter 13 of Army Regulation 635-200 for misconduct.  The
applicant waived his rights to representation by his appointed counsel, to
personally appear or have his case considered by a board of officers, and
to submit any statements on his own behalf.

9.  The applicant also acknowledged he could be discharged under other than
honorable conditions and furnished an Undesirable Discharge Certificate,
that he may be deprived of many or all Army benefits, that he may be
deprived of his rights and benefits as a veteran under both Federal and
State law.  The applicant also acknowledged that he may expect to encounter
substantial prejudice in civilian life because of a discharge under other
than honorable conditions.  Both the applicant and his counsel
authenticated this document.



10.  Records contain a Summary Record of Counseling [undated] that shows
the applicant was counseled on five separate occasions during the period 9
January 1976 through 9 June 1976 regarding his periods of AWOL, civilian
confinement, and poor appearance.

11.  On 6 July 1976, the applicant's unit commander submitted a
recommendation to discharge the applicant under the provisions of chapter
13 of Army Regulation 635-200.  The recommendation stated the applicant has
established a pattern of frequent incidents of a discreditable nature,
displayed of total lack of military bearing in conduct and appearance and
has displayed an increasing history of absenteeism and total disregard for
authority.

12.  On 7 July 1976, the unit commander advised the applicant that he was
being recommended for discharge under the provisions of Chapter 13 of Army
Regulation 635-200 for misconduct.  The memorandum further informed the
applicant of his right to present his case before a board of officers, to
submit any statements on his behalf, to be represented by counsel, and to
waive the above rights in writing.

13.  On 29 July 1976, the major general in command of Headquarters, 1st
Infantry Division and Fort Riley, approved the recommendations to discharge
the applicant under the provisions of paragraph 13-5a of Army Regulation
635-200 and furnish him an Undesirable Discharge Certificate.

14.  DA Form 4187 (Personnel Action), dated 4 August 1976, shows that the
applicant was AWOL from 2 August 1976 through 3 August 1976.

15.  The applicant's DD Form 214 shows that he was discharged on 9 August
1976, under the provisions of paragraph 13-5a of Army Regulation 635-200,
for unfitness and issued an Undesirable Discharge Certificate with service
characterized as under other than honorable conditions.  He had served 2
years, 2 months and 12 days of net active service and had 73 days of lost
time.

16.  There is no evidence in the available records which shows the
applicant applied to the Army Discharge Review Board for an upgrade of his
discharge within that board’s 15-year statute of limitation.

17.  The applicant submitted two obituary clippings that were published in
the pages of the Beatrice Daily Sun, Beatrice, Nebraska.  The first
obituary is about his brother, who died in a car accident on 29 July 1975.
The second obituary is about his grandmother, who passed away on 23 August
1974 and the funeral was held on 27 August 1974.
18.  Army Regulation 635-200 (Personnel Separations Enlisted Personnel)
sets forth the requirements and procedures for administrative discharge of
enlisted personnel.  At that time, paragraph 13-5a provided that
individuals would be discharged by reason of unfitness when their records
were characterized by one or more of the following:  a)  frequent incidents
of a discreditable nature with civil or military authorities; b)  sexual
perversion; c)  drug abuse; d)  an established pattern of shirking; e)  an
established pattern showing dishonorable failure to pay just debts; f)  an
established pattern showing dishonorable failure to contribute adequate
support to dependents; and/or g)  homosexual acts.  This regulation
prescribed that an undesirable discharge was normally issued unless the
particular circumstances warranted a general or an honorable discharge.

19.  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.

20.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  Evidence shows the applicant’s administrative separation was
accomplished in compliance with applicable regulations and there is no
indication of procedural errors that would tend to jeopardize his rights.
The discharge proceedings were conducted in accordance with law and
regulations applicable at the time and the character of the discharge is
commensurate with the applicant's overall record of military service.

3.  The applicant contends that his reasons for AWOL were due to the
passing of his grandmothers and his brother accidental death.  The
applicant did submit an obituary for his grandmother which shows her
funeral was conducted on
27 August 1974 and records do show he was AWOL around that period of time.
The applicant also submitted the obituary of his brother which shows he
passed away on 29 July 1975; however, records do not show he was AWOL
around that time period.

4.  The applicant’s contentions have been noted; however, these factors do
not provide a sufficient basis for upgrade of his discharge.

5.  The applicant's record of service included five counseling sessions and
four nonjudical punishments for various offenses including being AWOL,
missing duty, and being confined in a civil prison for 30 days.

6.  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.  Additionally, his service is deemed unsatisfactory in
view of his repeated offenses.  Therefore, he is not entitled to either a
general or an honorable discharge.

7.  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.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 9 August 1976; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 8 August 1979.  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

_TDH___  __JI____  __CD____  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.




                                      _Thomas D. Howard, Jr.__
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050007237                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/11/03                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1976/08/09                              |
|DISCHARGE AUTHORITY     |AR 635-200, para 13-5a(1)               |
|DISCHARGE REASON        |Misconduct                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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