RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 July 2006
      DOCKET NUMBER:  AR20050016056


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Eric Andersen                 |     |Chairperson          |
|     |Mr. Michael Flynn                 |     |Member               |
|     |Mr. Dennis Phillips               |     |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 undesirable discharge be upgraded.

2.  The applicant provides no explanation.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 20 May 1976.  The application submitted in this case is dated
26 October 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 on 1 October 1973 for a period of 3 years.  He
successfully completed basic combat training and advanced individual
training in military occupational specialty 36K (tactical wire operations
specialist).

4.  On 30 January 1974, nonjudicial punishment was imposed against the
applicant for leaving his appointed place of duty without authority.  His
punishment consisted of a forfeiture of pay, restriction, and extra duty.

5.  On 15 July 1974, nonjudicial punishment was imposed against the
applicant for behaving with disrespect toward three superior
noncommissioned officers and failing to obey a lawful order.  His
punishment consisted of a forfeiture of pay, restriction, and extra duty.

6.  On 19 July 1974, nonjudicial punishment was imposed against the
applicant for using disrespectful language toward a superior
noncommissioned officer.  His punishment consisted of a forfeiture of pay.

7.  On 3 October 1975, nonjudicial punishment was imposed against the
applicant for failing to obey a lawful order.  His punishment consisted of
a forfeiture of pay.
8.  On 14 October 1975, nonjudicial punishment was imposed against the
applicant for disorderly conduct (two specifications).  His punishment
consisted of a reduction to E-2 (suspended), restriction, and extra duty.
The suspended portion of the sentence was vacated on 13 November 1975.

9.  On 14 November 1975, nonjudicial punishment was imposed against the
applicant for using disrespectful language toward a superior
noncommissioned officer, failing to obey a lawful order, and being absent
without leave (AWOL) for 10 hours.  His punishment consisted of a reduction
to E-1.

10.  On 12 December 1975, nonjudicial punishment was imposed against the
applicant for being AWOL from 7 December 1975 to 11 December 1975.  His
punishment consisted of a forfeiture of pay and restriction.

11.  On 17 December 1975, a bar to reenlistment was imposed against the
applicant.

12.  On 20 January 1976, the applicant was notified of his pending
separation under the provisions of Army Regulation 635-200, chapter 13, for
unfitness due to frequent incidents of a discreditable nature with civil or
military authorities.

13.  On 21 January 1976, nonjudicial punishment was imposed against the
applicant for being AWOL from 6 January 1976 to 13 January 1976, disobeying
a lawful order, and being disrespectful in language toward a superior
noncommissioned officer.  His punishment consisted of a forfeiture of pay
and restriction.

14.  On 23 January 1976, the applicant consulted with counsel and requested
consideration of his case by a board of officers.  The proceedings and
recommendation of the board of officers is not available.

15.  On 11 February 1976, nonjudicial punishment was imposed against the
applicant for disobeying a lawful order, being disrespectful in language
and deportment toward a superior noncommissioned officer, and using a false
medical slip with intent to deceive.  His punishment consisted of
restriction and extra duty.

16.  On 14 May 1976, the separation authority approved the recommendation
for separation and directed the issuance of an undesirable discharge.

17.  Accordingly, the applicant was discharged on 20 May 1976 with an
undesirable discharge under the provisions of Army Regulation 635-200,
chapter 13, paragraph 13-5a(1) for unfitness due to frequent incidents of a
discreditable nature with civil or military authorities.  He had served 2
years, 6 months, and
26 days of total active service with 24 days of lost time due to AWOL.

18.  There is no evidence in the available records which shows the
applicant applied to the Army Discharge Review Board within its 15-year
statute of limitations.

19.  Army Regulation 635-200, in effect at the time, set forth the basic
authority for separation of enlisted personnel for unfitness or
unsuitability.  Chapter 13, paragraph 13-5a(1), provided for discharge due
to unfitness because of frequent incidents of a discreditable nature with
civil or military authorities.

20.  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.

21.  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.  Since the applicant’s record of service included nine nonjudicial
punishments and 24 days of lost time, his record of service was not
satisfactory and did not meet the standards of acceptable conduct and
performance of duty for Army personnel.  Therefore, the applicant's record
of service is insufficiently meritorious to warrant an honorable discharge
or general discharge.

2.  The applicant’s administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

4.  Records show the applicant should have discovered the alleged injustice
now under consideration on 20 May 1976; therefore, the time for the
applicant to file a request for correction of any injustice expired on 19
May 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

EA_____  _MF_____  _DP____  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.



                                  __Eric Andersen______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016056                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050016056                             |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19760520                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 13                   |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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