RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 July 2006
      DOCKET NUMBER:  AR20050017244


      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. James Vick                    |     |Chairperson          |
|     |Ms. Barbara Ellis                 |     |Member               |
|     |Mr. Donald Lewy                   |     |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
honorable.

2.  The applicant states he received a general discharge through no fault
of his own.  He was involved in an automobile accident and was unable to
perform his duties as an auto mechanic because of a broken leg and broken
arm.  He also states that his general discharge should be upgraded to
honorable for the following reasons:  (1) clemency is warranted because it
is an injustice for him to continue to suffer the adverse consequences of a
bad discharge; (2) under current standards, he would not receive the type
of discharge he did; (3) his average conduct and efficiency
ratings/behavior and proficiency marks were good (or pretty good); (4) he
received awards and decorations; (5) his record of promotions showed he was
generally a good service member; (6) his record of being absent without
leave (AWOL) indicates only minor or isolated offenses;
(7) his medical or physical problems impaired his ability to serve; and
(8) he tried to serve and wanted to, but just couldn’t or wasn’t able to.

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 2 June 1976.  The application submitted in this case is dated
28 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 enlistment contract shows he enlisted on 14 February
1975 for a period of 3 years.  He successfully completed basic training and
advanced individual training in military occupational specialty 63H
(automotive repair).

4.  On 23 March 1976, nonjudicial punishment was imposed against the
applicant for two specifications of being AWOL (from 16 December 1975 to 6
January 1976 and from 26 February 1976 to 9 March 1976).  His punishment
consisted of a forfeiture of pay, restriction, and extra duty.
5.  On 24 May 1976, nonjudicial punishment was imposed against the
applicant for being AWOL for 16 hours.  His punishment consisted of a
reduction to E-1, a forfeiture of pay, and restriction.

6.  On 25 May 1976, a bar to reenlistment was imposed against the
applicant.

7.  On 25 May 1976, the applicant was notified of his pending separation
under the provisions of Army Regulation 635-200, paragraph 5-37, under the
Expeditious Discharge Program for failure to maintain acceptable standards
for retention.  The unit commander recommended separation with a general
discharge and cited the applicant's poor attitude toward military duty, his
lack of motivation and self discipline, and his failure to demonstrate
promotion potential.

8.  The applicant acknowledged notification of his proposed discharge,
voluntarily consented to discharge from the Army, and elected not to make a
statement on his behalf.  He also acknowledged that he might expect to
encounter substantial prejudice in civilian life if issued a general
discharge and that he had been provided an opportunity to consult with
counsel.

9.  On 27 May 1976, the separation authority approved the recommendation
for separation and directed that the applicant be furnished a general
discharge.

10.  Accordingly, the applicant was discharged on 2 June 1976 with a
general discharge under the provisions of Army Regulation 635-200,
paragraph 5-37, under the Expeditious Discharge Program for failure to
maintain acceptable standards for retention.  He had served 1 year, 1
month, and 18 days of total active service with 61 days of lost time due to
AWOL.  It is noted that the applicant’s DA Form 2-1 (Personnel
Qualification Record) shows an additional 25-day AWOL period.

11.  There is no evidence in the applicant’s service personnel records
which shows he had a broken leg or broken arm prior to his discharge.

12.  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.

13.  Army Regulation 635-200, in effect at the time, set for the basic
authority for the separation of enlisted personnel.  The pertinent
paragraph in Chapter
5 provided that members who had completed at least 6 months but less than
36 months of continuous active service on their first enlistment and who
had demonstrated that they could not or would not meet acceptable standards
required of enlisted personnel because of poor attitude, lack of
motivation, lack of self-discipline, inability to adapt socially or
emotionally, or failure to demonstrate promotion potential may be
discharged.  It provided for the expeditious elimination of substandard,
nonproductive Soldiers before board or punitive action became necessary.
No member would be discharged under this program unless he/she voluntarily
consented to the proposed discharge.  Issuance of an honorable discharge
certificate was predicated upon proper military behavior and proficient
performance of duty during the member's current enlistment with due
consideration for the member's age, length of service, grade and general
aptitude.  A general discharge is a separation from the Army under
honorable conditions of an individual whose military record was not
sufficiently meritorious to warrant an honorable discharge.

14.  Army Regulation 635-200, Chapter 13 of the version currently in
effect, provides for separation due to unsatisfactory performance when in
the commander’s judgment the individual will not become a satisfactory
Soldier; retention will have an adverse impact on military discipline, good
order and morale; the service member will be a disruptive influence in the
future; the basis for separation will continue or recur; and/or the ability
of the service member to perform effectively in the future, including
potential for advancement or leadership, is unlikely.  Service of Soldiers
separated because of unsatisfactory performance under this regulation will
be characterized as honorable or under honorable conditions.

15.  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.  Although the applicant contends that medical problems impaired his
ability to serve, there is no medical evidence of record that shows the
applicant had any medical condition prior to his discharge on 2 June 1976.
There is also no evidence of record to show he was ever medically unfit to
perform his duties or that a medical condition caused him to go AWOL.

2.  The evidence of record does not support the applicant's contention that
under current standards he would not have received the type of discharge
that he received.  The current governing regulation states that an
individual discharged for unsatisfactory performance would normally be
furnished an honorable discharge or a general discharge.

3.  The applicant's separation under the Expeditious Discharge Program was
voluntary and the evidence shows he voluntarily consented to the discharge.

4.  Since the applicant's record of service included two nonjudicial
punishments and 61 days of lost time, his record of service 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.

5.  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.

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

7.  Records show the applicant should have discovered the alleged injustice
now under consideration on 2 June 1976; therefore, the time for the
applicant to file a request for correction of any injustice expired on 1
June 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

JV_____  _BE_____  __DL____  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.



                                  __James Vick__________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050017244                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060719                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19760602                                |
|DISCHARGE AUTHORITY     |AR 635-200 Paragraph 5-37               |
|DISCHARGE REASON        |Expeditious Discharge Program for       |
|                        |failure to maintain acceptable standards|
|                        |for retention                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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