RECORD OF PROCEEDINGS


      IN THE CASE OF:



      BOARD DATE:        17 August 2006
      DOCKET NUMBER:  AR20060001357


      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             |
|     |Mr. W. W. Osborn, Jr.             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. Dean A. Camarella             |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |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.

2.  The applicant states that she was told at the time that it would be
upgraded to a general under honorable conditions.

3.  The applicant provides a copy of her DD Form 214 (Report of Transfer or
Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 8 February 1972, the date of the discharge.  The
application submitted in this case is dated 16 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 and entered active duty on 31 December 1970.
She completed training as a clerk typist without noticeable incident.

4.  She then received nonjudicial punishments (NJPs), under the provisions
of the Uniform Code of Military Justice (UCMJ), on 26 May 1971, for failure
to go to her place of duty and, on 22 July 1971, for failure to obey a
lawful order, failure to go to her place of duty, and absence without leave
(AWOL) from her unit for
6 days.  The applicant was then AWOL in September 1971 for approximately
19 days, in October 1971 for approximately 9 days, and in November 1971 for
approximately 18 days.

5.  On 2 December 1971, the applicant was advised of possible elimination
under the provisions of Army Regulation 635-212.  She consulted with
counsel and requested consideration by a board of officers at a personal
appearance hearing with the assistance of her appointed military counsel
and indicated that statements in her own behalf were attached.

6.  The record of the board of officers is not contained in the available
records; however, the applicant signed for a copy on 8 February 1972.

7.  The separation authority approved a recommendation for separation and
directed that an undesirable discharge be issued.  On 8 February 1972 the
applicant was separated with an undesirable discharge under the provisions
of Army Regulation 635-212.  She had 11 months and 20 days of creditable
service and approximately 50 days lost time.

8.    Army Regulation 635-212, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  Paragraph 6a(1) of the
regulation provided, in pertinent part, that members involved in frequent
incidents of a discreditable nature with civil or military authorities were
subject to separation for unfitness.  An undesirable discharge was normally
considered appropriate.

9.  On 15 November 1977 and 24 July 1978 the Army Discharge Review Board
denied the applicant's petitions to upgrade her discharge.

10.  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 Army Discharge Review Board (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
Army Board for Correction of Military Records (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.  In the absence of evidence to the contrary, it is presumed that the
discharge proceedings were conducted in accordance with law and regulations
applicable at the time. The character of the discharge is commensurate with
her overall record.

2.  There is no substantiating evidence to show the applicant was told her
discharge would be upgraded.  There is no regulatory provision to provide
for such an automatic discharge upgrade nor has there ever been.

3.  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.

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 24 July 1978.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 23 July 1981.  However, 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

__RTD _  ___RMN__  __DAC__  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.



                                  __    Richard T. Dunbar____
                                            CHAIRPERSON


INDEX

|CASE ID                 |AR20060001357                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060817                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19720208                                |
|DISCHARGE AUTHORITY     |AR635-212 . . . . .                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |A51.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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