RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 October 2006
      DOCKET NUMBER:  AR20060003499


      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. James Gunlicks                |     |Chairperson          |
|     |Mr. Michael Flynn                 |     |Member               |
|     |Mr. Scott Faught                  |     |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 under other than honorable
conditions be upgraded.

2.  The applicant states, in effect, that in 1977 others (military and
civilian) were jealous of him because he is African American and his wife
was Caucasian with red hair and they had a new car.  He states that
paranoia and suspicion became an everyday occurrence, that racially
motivated situations and accusations of non-founded narcotic activities by
civilian and military superiors became uncomfortable, and that when he was
unjustly confined to quarters he went absent without leave.  He states that
his wife was due to give birth and he had no confidence or trust in anyone.
 He also states that after his child was born he sent his wife and child to
her parent’s house and he turned himself in to military authorities.

3.  The applicant provides 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 14 April 1978.  The application submitted in this case is dated
23 February 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 3 December 1976 for a period of 3 years.  He
successfully completed basic combat training and advanced individual
training in military occupational specialty 76Y (unit/organization supply
man).

4.  On 20 January 1977, nonjudicial punishment was imposed against the
applicant for being disrespectful toward a superior noncommissioned
officer.  His punishment consisted of a forfeiture of pay, extra duty, and
restriction.

5.  The applicant’s DD Form 214 (Report of Separation from Active Duty)
shows he had 163 days of lost time (20 September 1977 to 7 October 1977; 8
October 1977 to 12 October 1977; 20 October 1977 to 13 November 1977; 14
November 1977 to 27 February 1978; 6 March 1978 to 13 March 1978; and 30
March 1978 to 30 March 1978).  His DA Form 20 (Enlisted Qualification
Record) shows that he was confined by civil authorities from 8 October 1977
to 12 October 1977,
6 March 1978 to 13 March 1978, and 30 March 1978 to 30 March 1978).

6.  The facts and circumstances surrounding the applicant’s discharge are
not contained in the available records.  However, the applicant’s DD Form
214 shows that he was discharged under other than honorable conditions on
14 April 1978 under the provisions of Army Regulation 635-200, chapter 10,
for the good of the service, in lieu of court-martial.  He had served 10
months and 29 days of creditable active service.

7.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge within its 15-year statute of
limitations.

8.  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,
submit a request for discharge for the good of the service in lieu of trial
by court-martial.  The request may be submitted at any time after charges
have been preferred and must include the individual's admission of guilt.
Although an honorable or general discharge is authorized, a discharge under
other than honorable conditions is normally considered appropriate.

9.  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.

10.  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.  There is no evidence of record which shows that he was a victim of
racial discrimination.

2.  There is no evidence the applicant sought assistance from his chain of
command or chaplain on a way to resolve his problems within established
Army procedures.

3.  In the absence of evidence to the contrary, it must be presumed that
the applicant’s separation was administratively correct and in conformance
with applicable regulations.  Without having the discharge packet to
consider, it is presumed his characterization of service was commensurate
with his overall record of service.  As a result, there is no basis for
granting the applicant's request.

4.  Records show the applicant should have discovered the alleged injustice
now under consideration on 14 April 1978; therefore, the time for the
applicant to file a request for correction of any injustice expired on 13
April 1981.  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

JG_____  _MF_____  _SF_____  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.


                                  __James Gunlicks______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003499                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061005                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19780414                                |
|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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