RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        2 November 2006
      DOCKET NUMBER:  AR20060006950


      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. Scott Faught                  |     |Member               |
|     |Mr. Edward Montgomery             |     |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 that he was young, dumb and hard headed, that he
never got the chance to prove he was loyal and a Soldier, and that he did
not know that life was important.

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 1975.  The application submitted in this case is dated
4 May 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 was born on 12 February 1956.  He enlisted on 13 March
1974 for a period of 3 years.  He successfully completed basic combat
training and advanced individual training in military occupational
specialty 11B (infantryman).

4.  On 11 March 1975, contrary to his pleas, the applicant was convicted by
a special court-martial of behaving with disrespect toward a superior
commissioned officer, two specifications of using disrespectful language,
three specifications of disobeying lawful orders, communicating a threat to
kill, using provoking words, and failing to obey a lawful order.  He was
sentenced to be confined at hard labor for 6 months.  On 18 March 1975, the
convening authority approved the sentence.

5.  On 6 December 1974, a bar to reenlistment was imposed against the
applicant.

6.  Between 18 January 1975 and 17 May 1975, the applicant was counseled on
numerous occasions for various infractions which included failing to follow
instructions, disrespect, failing inspections, and marginal duty
performance.

7.  On 23 May 1975, the applicant was notified of his pending separation
under the provisions of Army Regulation 635-200, chapter 13, for unfitness
due to frequent incidents of a discreditable nature with civil or military
authorities.

8.  On 27 May 1975, the applicant consulted with counsel, waived
consideration of his case by a board of officers, waived a personal
appearance, and elected not to submit a statement on his own behalf.

9.  The separation authority approved the recommendation for separation and
directed the issuance of an undesirable discharge.

10.  Accordingly, the applicant was discharged on 10 June 1975 with an
undesirable discharge under the provisions of Army Regulation 635-200,
chapter 13, paragraph 13-5a(1) for unfitness due to frequent incidents of a
discreditable nature with civil or military authorities.  He had served 10
months and 20 days of total active service with 128 days of lost time due
to confinement.

11.  On 20 June 1977, the Army Discharge Review Board (ADRB) denied the
applicant’s request for an honorable discharge.

12.  Army Regulation 635-200, in effect at the time, set forth the basic
authority for separation of enlisted personnel for unfitness or
unsuitability.  Chapter 13, paragraph 13-5a(1), provided for discharge due
to unfitness because of frequent incidents of a discreditable nature with
civil or military authorities.

13.  Army Regulation 635-200, paragraph 3-7a, 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.

14.  Army Regulation 635-200, paragraph 3-7b, 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.

15.  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.  Age is not a sufficiently mitigating factor.  The applicant was 18
years old when he enlisted and he successfully completed basic training and
advanced individual training.

2.  The applicant’s record of service included a bar to reenlistment, one
special court-martial conviction, and 128 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 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.

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

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 20 June 1977.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to
this Board expired on 19 June 1980.  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

JG_____  _SF_____  __EM____  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                 |AR20060006950                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061102                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19750610                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 13                   |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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