RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 August 2006
      DOCKET NUMBER:  AR20060001479


      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. Kathleen Newman               |     |Chairperson          |
|     |Mr. Conrad Meyer                  |     |Member               |
|     |Ms. Yolanda Maldonado             |     |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, in effect, he was not offered helpful advice or
rehabilitation, that he was advised to accept the discharge, and that he
was told a general or “unsuitable” discharge would be recommended.  He also
contends that he was asked to waive his rights for appeal.  He further
states his record shows that he always did his job, that he was never court-
martialed, he never had a problem with drugs or alcohol, he received
promotions in a timely manner, he got along with his peers, and he was
absent without leave (AWOL) only twice for family reasons.

3.  The applicant provides a Notice of Proposed Discharge, dated 13
September 1976; a Discharge Under Chapter 13, AR [Army Regulation] 635-200,
dated
13 September 1976; a copy of his DA Form 20 (Enlisted Qualification
Record); and a copy of his DD Form 214 (Report of Separation from Active
Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 7 December 1976.  The application submitted in this case is
undated; however, the application was received in this office on 31 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 13 June 1975 for a period of 3 years.  While
in basic combat training, on 6 August 1975, nonjudicial punishment was
imposed against the applicant for using marijuana.  His punishment
consisted of a forfeiture of pay.

4.  He successfully completed advanced individual training in military
occupational specialty 67N (helicopter repairman).

5.  On 23 April 1976, nonjudicial punishment was imposed against the
applicant for being AWOL from 19 April 1976 to 20 April 1976.  His
punishment consisted of a forfeiture of pay, restriction, and extra duty.

6.  On 28 April 1976, nonjudicial punishment was imposed against the
applicant for failure to repair and disobeying a lawful order.  His
punishment consisted of a forfeiture of pay, restriction, and extra duty.

7.  On 9 August 1976, nonjudicial punishment was imposed against the
applicant for failure to repair.  His punishment consisted of a reduction
to E-1, restriction, and extra duty.

8.  On 23 August 1976, nonjudicial punishment was imposed against the
applicant for two specifications of failure to repair.  His punishment
consisted of a forfeiture of pay, restriction, and extra duty.

9.  On 13 September 1976, the applicant was notified of his pending
separation under the provisions of Army Regulation 635-200, chapter 13, for
unfitness due to an established pattern for shirking.

10.  On 17 September 1976, nonjudicial punishment was imposed against the
applicant for failure to repair, disobeying a lawful order, and causing a
breach of peace.  His punishment consisted of a forfeiture of pay
(partially suspended), restriction (partially suspended), and extra duty
(partially suspended).

11.  On 29 September 1976, the applicant consulted with counsel and
requested consideration of his case by a board of officers.

12.  On 23 November 1976, the applicant waived consideration of his case by
a board of officers and elected not to make a statement on his own behalf.

13.  On 30 November 1976, nonjudicial punishment was imposed against the
applicant for being AWOL from 10 November 1976 to 23 November 1976.  His
punishment consisted of a forfeiture of pay and extra duty.

14.  On 30 November 1976, the separation authority approved the
recommendation for separation and directed the issuance of an undesirable
discharge.

15.  Accordingly, the applicant was discharged on 7 December 1976 with an
undesirable discharge under the provisions of Army Regulation 635-200,
chapter 13, paragraph 13-5a(4) for unfitness due to an established pattern
for shirking.  He had served 1 year, 5 months, and 12 days of total active
service with 13 days of lost time due to AWOL.

16.  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.

17.  Army Regulation 635-200 sets forth the policy and prescribes the
procedures for administrative separation of enlisted personnel.  Chapter
13, in effect at that time, applied to separation for unfitness and
unsuitability.  Paragraph 13-5(a) provided for the separation for
unfitness, which included frequent incidents of a discreditable nature,
sexual perversion, drug abuse, an established pattern for shirking, failure
to pay just debts, failure to support dependents and homosexual acts.  When
separation for unfitness was warranted an undesirable discharge was
normally considered appropriate.

18.  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.

19.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were noted.  However, evidence of record
shows the applicant consulted with counsel and waived his rights.  There is
no evidence to show he was coerced into waiving his rights.

2.  Since the applicant’s record of service included seven nonjudicial
punishments and 13 days of lost time, 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 an honorable discharge
or general discharge.

3.  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.  He had an opportunity to
submit a statement in which he could have voiced his concerns and he failed
to do so.

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

5.  Records show the applicant should have discovered the alleged injustice
now under consideration on 7 December 1976; therefore, the time for the
applicant to file a request for correction of any injustice expired on 6
December 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

KN____  __CM______  YM___  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.



                                  ___Kathleen Newman____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001479                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060801                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19761207                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 13                   |
|DISCHARGE REASON        |Shirking                                |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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