RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 August 2006
      DOCKET NUMBER:  AR20060001054


      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:

|     |Ms. Margaret Patterson            |     |Chairperson          |
|     |Mr. Michael Flynn                 |     |Member               |
|     |Mr. Gerald Purcell                |     |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 undesirable discharge be upgraded.

2.  The applicant states he is trying to get his life together, that he is
married, and that he is buying a home.

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 10 June 1976.  The application submitted in this case is dated
13 January 2006.

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 enlisted on 24 September 1973 for a period of 3 years.
He successfully completed basic combat training.  He was awarded military
occupational specialty 31M (radio relay and carrier attendant) and later
05E (field radio mechanic).

4.  On 17 January 1974, nonjudicial punishment was imposed against the
applicant for being AWOL from 23 December 1973 to 29 December 1973.  His
punishment consisted of a forfeiture of pay (partially suspended),
restriction, and extra duty.

5.  On 16 December 1974, nonjudicial punishment was imposed against the
applicant for disorderly conduct.  His punishment consisted of a forfeiture
of pay and extra duty.

6.  On 10 March 1975, nonjudicial punishment was imposed against the
applicant for being derelict in the performance of his duties.  His
punishment consisted of a reduction to E-1 (suspended), a forfeiture of
pay, and extra duty.

7.  On 14 April 1975, in accordance with his plea, the applicant was
convicted by a special court-martial of assault.  He was sentence to
perform hard labor without confinement for 2 months, to forfeit $229 pay
for two months, and to be reduced to E-1.  On 25 June 1975, the convening
authority approved only so much of the sentence to confinement as provided
for hard labor without confinement for
2 months, forfeiture of $100 pay for 3 months, and reduction to E-1.

8.  On 8 August 1975, nonjudicial punishment was imposed against the
applicant for disobeying a lawful order.  His punishment consisted of a
forfeiture of pay.

9.  On 28 January 1976, nonjudicial punishment was imposed against the
applicant for failure to repair.  His punishment consisted of a reduction
to E-1 (suspended), a forfeiture of pay, and extra duty.

10.  The applicant went AWOL on 22 March 1976 and returned to military
control on 22 April 1976.

11.  On 23 April 1976, charges were preferred against the applicant for the
AWOL period and for larceny.  Trial by special court-martial was
recommended.

12.  On 14 May 1976, 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 to submit a statement in his own behalf.  In summary, he stated
that he liked the Army; however, with his past experiences he did not think
he could make it in the Army and he would be better off getting out.  He
also stated that he would like to receive a general discharge so he could
get some benefits and take care of his family, but if he received an
undesirable discharge he could live with it and still make it in the world.

13.  On 28 May 1976, the separation authority approved the applicant’s
request for discharge and directed that he be furnished an undesirable
discharge.

14.  Accordingly, the applicant was discharged with an undesirable
discharge on
10 June 1976 under the provisions of Army Regulation 635-200, chapter 10,
for the good of the service.  He had served 2 years, 7 months, and 4 days
of total active service with 44 days of lost time due to AWOL.
15.  On 27 April 1979, the Army Discharge Review Board (ADRB) denied the
applicant's request for an honorable or general discharge.

16.  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.

17.  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.

18.  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.

19.  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.  The applicant’s record of service included five nonjudicial
punishments, one special court-martial conviction, and 44 days of lost
time.  As a result, 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 discharge or an honorable discharge.

2.  The applicant’s voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, for the good of the service to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.

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

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 27 April 1979.  As a
result, the time for the applicant to file a request for correction of any
injustice to this Board expired on 26 April 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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

MP_____  __MF____  __GP___  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.




                                  ___Margaret Patterson_
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001054                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060803                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19760610                                |
|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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