RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 August 2006
      DOCKET NUMBER:  AR20050017157


      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             |
|     |Mrs. Victoria A. Donaldson        |     |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 discharge be upgraded so that he can
receive Veterans benefits.

2.  The applicant states that he never had any disciplinary actions against
him while he was in the military.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation
from Active Duty) and a copy of his DA Form 20 (Enlisted Qualification
Record) in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 20 May 1974, the date of his discharge.  The application
submitted in this case is dated 27 September 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 1 February 1974.  He was completed basic combat
training.  There is no evidence that he was awarded a military occupational
specialty and the highest rank he attained while serving on active duty was
private/pay grade E-1.

4.  The applicant’s record shows that he was awarded the National Defense
Service Medal.

5.  Records show that on 14 January 1974, the applicant certified he had
been advised that immediately upon entry on active duty a check would be
made with the Federal Bureau of Investigation.  The applicant acknowledged
that he understood that if he intentionally concealed or misrepresented any
information regarding his record of arrest or convictions or juvenile court
adjudications, he may later be subjected to disciplinary action under the
Uniform Code of Military Justice and/or discharged from the service under
other than honorable conditions,

6.  A US Department of Justice, Federal Bureau of Investigation report
shows that the applicant was arrested and charged for the following
offenses:  on 8 September 1971 for selling drugs; 23 July 1972 for
loitering and aggravated assault; 16 July 1973 for an unspecified charge;
29 December 1973 for driving while under the influence; and on 1 February
1974 for an unspecified charge.

7.  A US Department of Justice, Federal Bureau of Investigation report
shows that the applicant failed to report for induction on 13 July 1972.
This report further shows that records of the Supreme Court, Queens, New
York showed that the applicant was arrested in 8 September 1971 and charged
with the sale of drugs.  The report further shows that the applicant was
arrested in Miami, Florida in 1972 and therefore, was not inductable in
view of the outstanding warrant against him.

8.  On 6 May 1974, the applicant’s commander recommended that the applicant
be separated from the Army for concealment of his arrest record.  The
applicant's commander further stated that the applicant demonstrated by his
performance of duty that he does not possess the ability to become a
satisfactory Soldier and that he could not get along with his peers.  The
commander further stated that the applicant was given an Article 15 for
"breech of peace" for getting into a fight and disorderly conduct at the
Enlisted Members Club.  The commander concluded that the applicant's
academic performance was satisfactory but his conduct totally negates his
ability.

9.  On 8 May 1974, the applicant was counseled by a Judge Advocate's
General Corps captain serving in the position of defense counsel.  The
applicant was advised that the he was being recommended for separation
under the provisions of chapter 5 of Army Regulation 635-200 (Personnel
Separations) for concealment of his arrest record.

10.  On 14 May 1974, the separation authority directed the applicant’s
separation under the provisions of paragraph 5-38 of Army Regulation 635-
200, and directed that he receive a General Discharge Certificate.  On 20
May 1974, the applicant was discharged accordingly.  The DD Form 214 issued
to him at the time, confirms the applicant completed a total of 3 months
and 20 days of creditable active military service.



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

12.  Army Regulation 635-200 (Personnel Separations), sets forth the basic
authority for the separation of enlisted personnel.  Chapter 5, then in
effect, sets forth the conditions under which enlisted personnel could be
discharged, released from active duty or active duty for training, or
released from military control, for the convenience of the Government.
Paragraph 5-38 provided the policies and procedures for separating enlisted
personnel who intentionally concealed or misrepresented any information
regarding his record of arrest or convictions or juvenile court
adjudications

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded so that he
can receive Veterans benefits.

2.  The applicant was separated from the military for concealing his arrest
record.  The applicant acknowledged that he understood that he could be
separated from military service for intentionally concealing or
misrepresenting his arrest record.

3.  The record confirms that all requirements of law and regulation were
met and the applicant’s rights were fully protected throughout the
separation process.

4.  The ABCMR does not grant requests for upgrade of discharges solely for
the purpose of making the applicant eligible for employment or employment
benefits.

5.  In order to justify correction of a military record the applicant must
satisfactorily show, or it must otherwise satisfactorily appear, that the
record is in error or unjust.  The applicant has failed to submit
sufficient evidence that would satisfy this requirement.


6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 May 1974; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 19 May 1977.  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                 |AR20050017157                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060815                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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