RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 August 2006
      DOCKET NUMBER:  AR20050016162


      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. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. John G. Heck                  |     |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 general discharge be upgraded to a
honorable discharge, in effect, his undesirable discharge, and that the
narrative reason for separation be changed.

2.  The applicant states, in effect, that he was unfairly charged due to
racial overtones and to racial unrest in the company.

3.  The applicant provides no additional information.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 8 November 1973, the date he was separated from active
duty service.  The application submitted in this case is dated 9 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 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 that he enlisted in the Regular Army on
29 March 1972.  He completed the required training and was awarded military
occupational specialty 76A10 (Supply).  The highest grade he attained was
pay grade E-3.

4.  On 23 January 1973, the applicant accepted nonjudicial punishment (NJP)
for two incidents of disobeying a lawful order.  His imposed punishment was
a reduction to pay grade E-2, a forfeiture of $80.00 pay and to perform 14
days extra duty.

5.  On June 1973, the applicant accepted NJP for disobeying a lawful order.
 His imposed punishment was a reduction to pay grade E-1.

6.  On 21 September 1973, court-martial charges were preferred against the
applicant for assaulting another Soldier with a means likely to produce
grievous bodily harm, for resisting a lawful arrest, for orally
communicating certain indecent and obscene language towards a female and
for communicating a threat to a superior commissioned officer.

7.  On 23 October 1973, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation action, the effects of
an undesirable discharge (UD) and of the rights available to him.  The
applicant voluntarily requested discharge for the good of the service, in
lieu of trial by court-martial.  In his request for discharge, he
acknowledged that he was guilty of the charge against him or of a lesser-
included offense therein contained which also authorizes the imposition of
a bad conduct or dishonorable discharge.  He further stated that under no
circumstances did he desire further rehabilitation, for he had no desire to
perform further military service.  He also acknowledged that he understood
that if his request for discharge was approved, he could be deprived of
many or all Army benefits, that he could be ineligible for many or all
benefits administered by the Department of Veterans Affairs (VA), and that
he could be deprived of his rights and benefits as a veteran under both
Federal and State law.  Further, he indicated he understood that he could
encounter substantial prejudice in civilian life by reason of a UD.

8.  On 5 November 1973, the separation authority approved the applicant’s
request for discharge and directed that he be issued an Undesirable
Discharge Certificate.  On 8 November 1973, the applicant was discharged
accordingly.  The separation document (DD Form 214) he was issued confirms
he completed 1 year, 7 months and 10 days of creditable active military
service.

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.

10.  On 20 April 1979, the Army Discharge Review Board (ADRB) determined
that the applicant’s discharge was proper and equitable and voted to deny
the applicant’s request for an upgrade of his discharge.

11.  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 Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 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 contentions were carefully considered and found to have
insufficient merit in this case.  Therefore, given the circumstances in
this case and his overall undistinguished record of service, there is
insufficient evidence to support his requests at this time.

2.  The evidence of record confirms that the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, the applicant voluntarily
requested discharge from the Army in lieu of trial by court-martial.  All
requirements of law and regulation were met, the rights of the applicant
were fully protected throughout the separation process and his discharge
accurately reflects his overall record of service.

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

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 exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 20 April 1979.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 19 April 1982.  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

__SLP __  __RML__  __JGH___  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                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/08/15                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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