RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 July 2006
      DOCKET NUMBER:  AR20050017519


      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. William Powers                |     |Chairperson          |
|     |Ms. Marla Troup                   |     |Member               |
|     |Mr. William Crain                 |     |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 undesirable discharge be
upgraded.

2.  The applicant states, in effect, his discharge was too harsh for owning
a weapon.  He contends he was discharged for possessing an unauthorized
weapon in a non-secure area.  He states he was only 17 years old and he was
unaware of the consequences of the infraction.

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 15 March 1972.  The application submitted in this case is dated
27 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 was born on 30 January 1953.  He enlisted on 29 July 1970
for a period of 3 years.  He successfully completed basic combat training
and advanced individual training in military occupational specialty 67A
(aircraft maintenance apprentice).

4.  On 3 May 1971, nonjudicial punishment was imposed against the applicant
for failing to obey a lawful order, being disrespectful toward a superior
commissioned officer, and for not being in the proper uniform while posted
as a sentinel.  His punishment consisted of a forfeiture of pay and extra
duty.

5.  On 8 December 1971, nonjudicial punishment was imposed against the
applicant for failing to maintain the standards prescribed for hair cuts
and failing to obey two lawful orders.  His punishment consisted of a
forfeiture of pay (partially suspended) and extra duty.  On 14 December
1971, the suspended portion of the punishment was vacated.

6.  On 10 February 1972, charges were preferred against the applicant for
possession of marijuana (5 and 1/2 grams) and violating two lawful
regulations (having a .22 caliber pistol and 15 rounds of ammunition in his
possession in his barracks cubicle).  Trial by special court-martial was
recommended.

7.  On 25 February 1972, after consulting with counsel, the applicant
submitted a request for discharge for the good of the service under the
provisions of Army Regulation 635-200, chapter 10.  He indicated in his
request that he understood that he could be discharged under other than
honorable conditions and furnished an Undesirable Discharge Certificate,
that he might be deprived of many or all Army benefits, that he might be
ineligible for many or all benefits administered by the Veterans
Administration and that he might be deprived of his rights and benefits as
a veteran under both Federal and State law.  He also acknowledged that he
might encounter substantial prejudice in civilian life because of an
undesirable discharge.  He elected not to submit a statement in his own
behalf.

8.  On 3 March 1972, the separation authority approved the applicant’s
request for discharge and directed that he be furnished an undesirable
discharge.

9.  Accordingly, the applicant was discharged with an undesirable discharge
on
15 March 1972 under the provisions of Army Regulation 635-200, chapter 10,
for the good of the service.  He had served 1 year, 7 months, and 16 days
of total active service.

10.  On 5 August 1974, the Army Discharge Review Board (ADRB) denied the
applicant's request for a general discharge.  On 17 March 1982, the ADRB
denied the applicant’s request for an honorable discharge.

11.  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.  At the time, an undesirable
discharge was normally considered appropriate.

12.  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.
13.  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.

14.  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 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 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.  Age is not a sufficiently mitigating factor.  Although the applicant
was 17 years old when he enlisted, he successfully completed basic combat
training and advanced individual training and was 19 years old when he
committed the offenses for which court-martial charges were preferred.

2.  The evidence of record does not support the applicant’s contention that
he was unaware of the consequences of the infraction.  Evidence of record
shows the applicant had previously accepted nonjudicial punishment on two
occasions, so he knew the “consequences” for misconduct.

3.  Since the applicant’s record of service included two nonjudicial
punishments and serious offenses that led to referral of special court-
martial charges, 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 a general or honorable discharge.

4.  The applicant’s voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial,
was administratively correct and in conformance with applicable
regulations.  He had an opportunity to submit a statement in which he could
have voiced his concerns and he failed to do so.

5.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 17 March 1982.  As
a result, the time for the applicant to file a request for correction of
any injustice to this Board expired on 16 March 1985.  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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

WP____  _MT____  __WC____  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.




                                  __William Powers______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050017519                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060720                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19720315                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 10                   |
|DISCHARGE REASON        |For the good of the service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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