RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 August 2006
      DOCKET NUMBER:  AR20050016582


      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. Linda D. Simmons              |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Jerome L. Pionk               |     |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 discharge under other than
honorable conditions be upgraded.

2.  The applicant provides no specific argument in support of his request.


3.  The applicant provides a copy of his separation document (DD Form 214)
in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 18 March 1976, the date he was separated from active
duty.  The application submitted in this case is dated 18 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 and
entered active duty on 30 November 1973.  He was trained in and awarded
military occupational specialty (MOS) 12B10 (Combat Engineer) and the
highest rank he attained while serving on active duty was pay grade E-3.
The record documents no acts of valor, significant achievement or service
warranting special recognition.

4.  On 22 October 1974, the applicant accepted nonjudicial punishment (NJP)
for the wrongful possession of 1 ounce more or less of Marijuana.  His
imposed punishment was a forfeiture of $50.00 pay, and 14 days extra duty.

5.  On 10 June 1975, the applicant accepted NJP for leaving his appointed
place of duty without proper authority.  His imposed punishment was a
reduction to pay grade E-2, a forfeiture of $80.00 pay, 14 days restriction
and 14 days extra duty.

6.  On 15 January 1976, the applicant was convicted by a Special Court-
Martial of unlawfully striking a fellow Soldier in the face and back with
his fist and feet.  He was sentenced to confinement at hard labor for 3
months (suspended for
6 months), a forfeiture of $150.00 pay per month for 3 months and a
reduction to pay grade E-1.

7.  On 9 March 1976, the commander initiated separation action under the
provisions of Army Regulation 635-200, Chapter 13 for unfitness.  The
discharge was recommended because of the applicant’s frequent incidents of
discreditable nature with military authorities.

8.  On the same day, the applicant acknowledged notification of the action.
 He waived consideration of his case by a board of officers, waived
personal appearance before such a board and waived representation by
counsel.  He did not submit a statement in his own behalf.

9.  On 10 March 1976, the appropriate authority approved the recommendation
and directed that the applicant receive an Undesirable Discharge
Certificate (UD).

10.  On 18 March 1976, the applicant was discharged in pay grade E-1, under
the provisions of Army Regulation 635-200, chapter 13 for unfitness with a
UD.  He had completed 2 years, 1 month and 16 days of creditable active
service and 63 days of time lost due to confinement.

11.  There is no indication that the applicant applied to the Army
Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-
year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel for (unfitness).  Chapter 13 contains the
policy and outlines the procedures for separating individuals for
unfitness, and provides, in pertinent part, that commanders will separate a
member under this chapter when, in the commander's judgment, the member
will not develop sufficiently.  When separation for unfitness was warranted
an undesirable discharge was normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant’s discharge processing
was accomplished in accordance with the governing regulation.  All
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout the separation process.

2.  The evidence of record shows that the applicant’s discharge was
appropriate because the quality of service determination at the time of
discharge was not consistent with the Army’s standards for acceptable
personal conduct and performance of duty by military personnel.

3.  Therefore, the type of discharge directed and the reasons 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 should have discovered the alleged error or
injustice now under consideration on 18 March 1976.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 17 March 1979. However, he 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

___LDS__  __JTM__  __JLP___  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.




                                  ____Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/08/22                              |
|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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