RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 September 2006
      DOCKET NUMBER:  AR20060000051


      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:

|     |Mr. William F. Crain              |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. David W. Tucker               |     |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 to an honorable
discharge.

2.  The applicant states, in effect, that he left the military at a young
age.  He did not know the rules and regulations concerning the type of
discharge he received. The many years that he has been out of service he
has been a model citizen.  He has raised two children and is involved in
church work.  He knows that that he did wrong and requests that his
discharge be upgraded to an honorable discharge.

3.  The applicant provides no additional documents in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 23 August 1979, the date he was discharged
from active duty.  The application submitted in this case is dated 16
December 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 he reenlisted in the Regular Army on 10
March 1975 for a period of 6 years with 1 year, 9 months, and 5 days of
prior active military service.  He was trained in, awarded, and served in
military occupational specialty (MOS) 11B10 (Infantryman) and the highest
rank he attained while serving on active duty was pay grade E-4.

4.  On 30 August 1976, the applicant was convicted by a Special Court-
Martial of five specifications of being absent without leave (AWOL) from 15
February to
17 March 1976, from 22 to 30 March 1976, from 9 to 13 April 1976, from 4 to

12 May 1976, from 18 May to 25 June 1976, and from 29 June to 7 July 1976.
He was sentenced to confinement at hard labor for 30 days, a reduction to
pay grade E-1, and a forfeiture of $100.00 pay per month for 4 months.

5.  On 3 August 1977, the applicant received a Bar to Reenlistment
Certificate.  The Bar was based on the applicant’s Special Court-Martial
conviction for being AWOL, for the wrongful possession of Marijuana, and
for his substandard performance of duty.

6.  Between January 1978 and April 1979, the applicant accepted six
nonjudicial punishments for two incidents of being AWOL from 6 to 9 March
1979 and from 11 to 13 January 1979, for two incidents of failure to go at
the prescribed time his appointed place of duty, for dereliction of duty,
and for the possession of 1 gram of Marijuana.  His punishments included a
reduction to pay grade E-1, forfeitures, restrictions, and extra duties.

7.  Between April and May 1979, the applicant was formally counseled on six
separate occasions for substandard performance of duty, for his negative
attitude, for being disrespectful to his superiors, and for his record of
misconduct.

8.  On 13 May 1979, the applicant was examined and was found mentally and
physically competent to withstand board judicial proceedings and met
retention standards.

9.  On 14 May 1979, the unit commander notified the applicant that he was
being recommended for discharge under the provisions of Army Regulation 635-
200, chapter 14, for misconduct (frequent incidents of a discreditable
nature with civil or military authorities).  The commander’s recommendation
was based on the applicant’s periods of AWOL and his history of
disciplinary actions.  He further stated that in view of the
aforementioned, he believes that it is in the best interest of the U.S.
Army to eliminate the applicant from service under the provisions of Army
Regulation 635-200, chapter 14, for misconduct.

10.  On the same day, the applicant was advised by legal counsel of the
basis for the contemplated action to separate him for misconduct, under
Army Regulation 635-200, chapter 14, and of the rights available to him.
The applicant acknowledged that he understood that he may encounter
substantial prejudice in civilian life if a discharge less than honorable
was issued to him.  After being advised of the impact of the discharge
action, he waived consideration, personal appearance, and representation
before a board of officers.  The applicant did not submit a statement in
his own behalf.

11.  The appropriate authority approved the recommendation, waived a
hearing before a board of officers, and directed the issuance of an Under
Other Than Honorable Conditions (UOTHC) Discharge Certificate.  On 23
August 1979, the applicant was discharged in pay grade E-1 under the
provisions of Army Regulations 635-200, chapter 14-33b(1), for misconduct-
frequent incidents of a discreditable nature with civil or military
authorities, with an UOTHC discharge.  He had completed 3 years, 10 months,
and 19 days of creditable active service and 207 days of time lost during
this period of service.

12.  Army Regulation 635-200 sets forth the policy for the separation of
enlisted personnel.  Chapter 14 establishes policy and prescribes
procedures for separating members because of misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense, conviction by civil authorities, desertion
or absence without leave.  Action will be taken to separate a member for
misconduct when it is clearly established that rehabilitation is
impracticable or is unlikely to succeed.

DISCUSSION AND CONCLUSIONS:

1.  The contentions of the applicant were carefully considered and found to
be insufficient in supporting his request.  The applicant’s record shows
that he was 20 years of age at the time of the offenses.  There is no
evidence that indicates that he was any less mature than any other Soldier
of the same age who successfully completed military service.  Therefore,
given the circumstances in this case and his overall record of service,
there is insufficient evidence to support upgrading his discharge.

2.  The applicant’s contentions regarding his good post service conduct and
achievements were carefully considered.  The applicant’s good post service
conduct is commendable, but is not so meritorious as to warrant an upgrade
of his discharge.

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.  The record further shows the applicant’s discharge
accurately reflects his overall record of undistinguished service.

4.  Based on his record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  Therefore, he is not entitled to an upgrade of his
discharge.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 August 1979; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
22 August 1982.  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

__WFC__  __JCR___  __DWT _  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 F. Crain_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/09/21                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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