RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        31 August 2006
      DOCKET NUMBER:  AR20050016029


      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             |
|     |Mr. Luis Almodova                 |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |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 be
upgraded to honorable.

2.  The applicant states, in effect, that "the commanding officer (C.O.)
did not like me and I was a witness for another Soldier that was not
dressing proper and the C.O. discharged me."

3.  In support of his request, the applicant submitted three character
reference letters.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice that
occurred on 9 July 1975, the date he was discharged with an undesirable
discharge.  The application submitted in this case is dated 25 October 2005
but was received for processing on 3 November 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 limitation 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 US Army Reserve on 15 August 1972.  On
5 September 1972, the applicant enlisted in the Regular Army for 3 years.
 The applicant successfully completed basic combat training and his
advanced individual training at Fort Jackson, South Carolina.  On
completion of his advanced training, he was awarded the military
occupational specialty (MOS) 63B, (Wheeled Vehicle Mechanic).

4.  On 3 May 1973, the applicant received non-judicial punishment under
the provisions of Article 15 of the Uniform Code of Military Justice
(UCMJ) for absenting himself from his place of duty on 1 May 1973.  The
imposed punishment was forfeiture of $75.00 pay per month for one month,
and to be restricted to the company area for 30 days (suspended for 90
days).  The applicant did not appeal the punishment.

5.  On 14 September 1973, the applicant was promoted to the rank/pay grade,
Private First Class/E-3.  This would be the highest rank/pay grade the
applicant would hold while in the Army.

6.  On 9 October 1973, the applicant received non-judicial punishment under
the provisions of Article 15 of the UCMJ for being disrespectful in
language towards his superior warrant officer on 29 September 1973.  The
imposed punishment was performance of 2 hours extra duty for 14 days.  The
applicant did not appeal the punishment.

7.  On 6 December 1973, the applicant received a Special court-martial.
He was found guilty of unlawfully striking another Soldier on the body
and head with his fists, on 22 October 1973; unlawfully striking the same
Soldier in the back and knocking him down the stairs, on 23 October 1973;
and unlawfully communicating a threat to injure another Soldier, on 22
October 1973.  The applicant was sentenced to reduction to private, pay
grade E-1, to forfeit $25.00 pay per month for 3 months, and to be
confined at hard labor for a period of 3 months.  The sentence was
adjudged on 6 December 1973 and was approved and ordered executed on
17 December 1973.

8.  The Judge Advocate, Headquarters, 25th Infantry Division, reviewed the
record of trial on 19 December 1973.  The proceedings, findings, and
sentence were found to be correct in law and in fact and were approved by
the convening authority.

9.  On 24 December 1973, the applicant was reassigned to the US Army
Retraining Brigade, Fort Riley, Kansas, from Hawaii.  The applicant
remained at the retraining brigade until 24 February 1974 when he was
reassigned to Fort Lee, Virginia, following his retraining/rehabilitation.

10.  On 19 June 1974, the applicant received a special court-martial.  He
was found guilty of absenting himself from his unit on 15 April 1974 and
remaining absent until 14 May 1974.  The applicant was sentenced to
reduction to private, pay grade E-1, to forfeit $65.00 pay per month for 3
months, and to be confined at hard labor for a period of 45 days.  The
sentence was adjudged on 19 June 1974 and approved and ordered executed on
3 July 1974.

11.  The Judge Advocate, Headquarters, US Army Quartermaster Center and
Fort Lee, Virginia, reviewed the record of trial on 29 July 1974.  The
proceedings, findings, and sentence were found to be correct in law and in
fact and were approved by the convening authority.

12.  Item 38 (Record of Assignments), of the applicant's DA Form 20,
Enlisted Qualification Record, shows he was confined at the Area
Confinement Facility, Fort George G. Meade, Maryland, on 19 June 1974.  He
was transferred to the US Army Retraining Brigade, Fort Riley, on 2 July
1974.

13.  On 4 September 1974, Special Court Martial Orders Number 1774, US
Army Retraining Brigade, Fort Riley, Kansas, were published.  By these
orders, the unexecuted potion of the approved sentence to forfeiture of
$65.00 pay per month for three months was suspended until 25 September
1974, at which time, unless sooner vacated, the suspended portion of the
sentence would be remitted without further action.

14.  On 12 March 1975, the applicant received non-judicial punishment
under the provisions of Article 15 of the UCMJ for willfully disobeying a
lawfully given order from his superior noncommissioned officer on 11
February 1975.  The imposed punishment was reduction to Private E-1,
forfeiture of $50.00 for 2 months, and extra duty for 20 days.  The
applicant did not appeal the punishment.

15.  On 25 March 1975, the applicant received non-judicial punishment under
the provisions of Article 15 of the UCMJ for failing to go at the time
prescribed to his appointed place of duty on 22 March 1975.  The imposed
punishment was extra duty for 5 days.  The applicant did not appeal the
punishment.

16.  On 8 April 1975, the applicant underwent a separation physical
examination.  The applicant was found medically qualified for separation.
On the same date, the applicant also underwent a mental status evaluation.
 He was evaluated by a medical corps captain and was found to have clear
thought, to be fully alert and oriented, to have good memory, a level mood
and demonstrated normal behavior. He was found to have no significant
mental illness, was found to be mentally responsible, able to distinguish
right from wrong, able to adhere to the right, and to have the mental
capacity to understand and participate in board proceedings.  The
applicant was found to meet the retention standards prescribed in Army
Regulation (AR) 40-501, chapter 3.

17.  On 21 April 1975, the applicant's commander recommended that the
applicant appear before a board of officers for the purpose of determining
whether he should be discharged before his expiration of term of service.
A copy of the notification of elimination referred to in paragraph 18 below
was included in the recommendation.
18.  On 23 April 1975, the commander notified the applicant he was taking
action to eliminate him from the Army prior to his expiration of term of
service for unfitness under the provisions of AR 635-200.  He was advised
that the recommendation was being made due to his frequent incidents of a
discreditable nature with military authorities.

19.   The applicant was advised that he had the right to consult with
consulting counsel, present his case before a board of officers, to submit
statements in his behalf, to be represented at any hearing by appointed
counsel for representation, and to waive any or all of his rights.

20.  Counsel advised the applicant, on 23 June 1975 (sic) [date believed to
have been 23 April 1975], of the basis for the contemplated action.  He
waived consideration of his case by a board of officers, a personal
appearance before a board of officers, and elected not to submit a
statement in his own behalf.

21.  On 30 May 1975, the applicant's chain of command recommended approval
of the elimination action and recommended that the rehabilitation
requirement be waived due to the applicant's completely negative attitude
and constant disciplinary problems.

22.  On 3 July 1975, the authority empowered to approve the separation
action, a brigadier general, ordered that the applicant be discharged for
unfitness with an undesirable discharge.

23.  The applicant was discharged in the rank and pay grade of Private, E-
1, on 9 July 1975, under the provisions of AR 635-200, Chapter 13, for
unfitness.  On the date of his discharge, the applicant had completed
2 years and 6 months total active military service, with 125 days lost due
to absence without leave and confinement.

24.  Item 26 (Decorations, Medals, Badges, Citations, and Campaign Ribbons
Awarded or Authorized), of the applicant's DD Form 214, Certificate of
Release or Discharge from Active Duty, shows that he was awarded the
National Defense Service Medal.  The record contains no documentary
evidence of acts of valor or achievement which warrant special recognition.

25.  The applicant applied to the Army Discharge Review Board (ADRB) for an
upgrade of his discharge within its 15-year statute of limitations.  On 9
November 1976, the applicant appeared, with counsel, before an ADRB panel.

26.  On 16 March 1977, the ADRB advised the applicant that after careful
consideration of his military records and all other available evidence, it
had determined that he had been properly discharged.

27.  AR 635-200 provides the authority for the separation of enlisted
personnel.  Chapter 13 establishes procedures and guidance for
eliminating enlisted personnel found to be unfit or unsuitable for
further military service.  An individual separated by reason of unfitness
will be furnished an undesirable discharge certificate, except that an
honorable or a general discharge certificate may be issued if the
individual has been awarded a personal decoration or if warranted by the
particular circumstances in his case.  The type of discharge to be issued
will be directed by the convening authority.

28.  AR 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, 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.

29.  AR 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 separation specifically allows such characterization.

30.  The character reference letters the applicant submitted state he has
been a good citizen all his life and of good character and citizenship;
that he is of high moral character, dependable, reliable, and enjoys
being around people of all types, is trustworthy and well-like by all who
come in contact with him; and that he regrets the actions that resulted
in his getting less than an honorable discharge years ago and would
appreciate getting this matter cleared up.

31.  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 ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (AR 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’s administrative separation was accomplished in
compliance with applicable regulations with no procedural errors, which
would tend to jeopardize his rights.

2.  The applicant alleged in his application to the Board that his
commanding officer did not like him because he was a witness for another
Soldier; however, the evidence does not support this contention.  The
evidence shows the applicant was a disciplinary problem.  He was
disrespectful to those in authority, unlawfully struck and injured another
Soldier, threatened yet another Soldier, and absented himself without
authority.  The applicant in his short period of service received two
courts-martial and four non-judicial punishments under Article 15 of the
UCMJ.

3.  The applicant was sent to the US Army Retraining Brigade twice for
retraining and rehabilitation purposes; however, each time, after he was
restored and sent to a unit for post-retraining duty, he encountered
difficulties with his behavior.

4.  The overall quality of the applicant’s service was considered.  The
record contains no documentary evidence of acts of valor or achievement
which would warrant special recognition and an upgrade of his undesirable
discharge.  His service was determined not to be sufficiently meritorious
to warrant an upgrade of his discharge.

5.  The character reference letters the applicant submitted to the Board
were considered, however, these character reference letter are not
sufficiently mitigating to cause an upgrade of the type of discharge he
received.  Accordingly, the type of discharge directed and the reasons
therefore were appropriate considering all of the available facts of the
case.

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.  In view of the foregoing, there is no basis for granting the
applicant's request for an upgrade of his undesirable discharge to either a
general or an honorable discharge.

8.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 16 March 1977.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 15 March 1980.  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

__JCR __  _WDP __  __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.




                                  _____William D. Powers____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050016029                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060831                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19750709                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 13                  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1. 360   |144.0000                                |
|2.  583                 |144.5000                                |
|3.  592                 |144.5100                                |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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