RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         18 January 2006
      DOCKET NUMBER:  AR20050007954


      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. Betty A. Snow                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Mr. Chester A. Damian             |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |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 undesirable discharge (UD)
be upgraded.

2.  The applicant states, in effect, that the incident that led to his
discharge was a case of self-defense.  He claims he was attacked by another
Soldier.  The applicant also claims he was a good Soldier.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 23 May 1975.  The application submitted in this case is
dated
13 May 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 4 September 1973.  He was trained in, awarded and
served in military occupational specialty (MOS) 12B20 (Combat Engineer),
and the highest rank he held while on active duty was specialist four
(SP4).

4.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.  The record does
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
31 October 1974, for behaving with disrespect toward his commander, and
disobeying a lawful order.

5.  The applicant’s Military Personnel Record Jacket (MPRJ) is void of a
separation packet containing the specific facts and circumstances
surrounding his separation processing.
6.  The applicant’s record does include a separation document (DD Form 214)
that shows that on 23 May 1975, he was separated under the provisions of
chapter 10, Army Regulation 635-200, for the good of the service, in lieu
of trial by court-martial, and that he received an UD.

7.  The applicant’s DD Form 214 also shows that at the time of his
discharge, he had completed 1 year, 8 months and 20 days of creditable
active military service. It also shows that during his active duty tenure,
he earned the National Defense Service Medal and Sharpshooter Qualification
Badge with Rifle Bar.

8.  There is no indication that the applicant requested an upgrade of his
discharge from the Army Discharge Review Board within its 15-year statue of
limitations.

9.  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 UD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the incident leading to his character
of discharge was a case of self-defense and that he was otherwise a good
Soldier was carefully considered.  However, there is insufficient evidence
to support his claim.

2.  The applicant’s record is void of the specific facts and circumstances
surrounding his discharge processing.  However, the record does contain a
properly constituted DD Form 214 that identifies the reason and
characterization of his discharge.  Therefore, Government regularity in the
discharge process is presumed.

3.  The evidence of record confirms the applicant was discharged under the
provisions of chapter 10, Army Regulation 635-200, for the good of the
service, in lieu of trial by court-martial.  In connection with such a
discharge, he was charged with the commission of an offense punishable with
a punitive discharge under the UCMJ.  Procedurally, he was required to
consult with defense counsel, and to voluntarily request separation from
the Army in lieu of trial by
court-martial.  In doing so, he would have admitted guilt to the stipulated
offense(s) under the UCMJ that authorized the imposition of a punitive
discharge.

4.  In the absence of information to the contrary, it is concluded that 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.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 May 1975, the date of his
separation.  Therefore, the time for him to file a request for correction
of any error or injustice expired on 22 May 1978.  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

___SLP _  __CAD __  __KSJ___  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.




                                  _____Shirley L. Powell_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050007954                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/01/18                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1975/05/23                              |
|DISCHARGE AUTHORITY     |AR635-200, Ch10 . . . . .               |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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