RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 January 2007
      DOCKET NUMBER:  AR20060008550


      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. Stephanie Thompkins           |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Jeffrey C. Redmann            |     |Chairperson          |
|     |Mr. Rodney E. Barber              |     |Member               |
|     |Mr. David W. Tucker               |     |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, in effect, that his general discharge be
upgraded to honorable.

2.  The applicant states, in effect, that he did not know he signed for a
discharge. He also states that he contracted a disease which required two
shots of penicillin in the buttocks.  He had problems with his sergeant
ever since the sergeant hit him in the buttocks to wake him up and he came
up swinging.  He requested for reassignment and his sergeant stated that he
would get him out of here.  His sergeant ordered him to file for this.  He
thought he was getting transferred, not discharged by signing those papers
years ago.  This is what he was lead to believe.

3.  The applicant provides no documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 13 April 1977, the date of his separation from active duty.
The application submitted in this case is dated 12 June 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's military records show he enlisted in the United States
Army Reserve (USAR), in pay grade E-1, on 7 November 1975.  He enlisted in
the Regular Army on 2 December 1975, for 3 years.  He completed basic and
advanced training and was assigned military occupational specialty 67Y,
Attack Helicopter Repairer.

4.  The applicant was formally counseled on 22 November 1976 for being
disruptive in formations, failing to get out of bed when told, for being
sloppy in appearance, and having a poor attitude.  The counselor
recommended the applicant change his attitude, stand formations, and dress
in a proper military manner.
5.  The applicant was formally counseled on 23 November 1976 for his
conduct and appearance while in formations and not complying with
instructions and duties assigned by his room commander.  The counselor
recommended the applicant be released from active service.

6.  The applicant was formally counseled on 23 November 1976 for his poor
attitude toward superiors, for questioning every order that was given him
by superiors, and for having a poor attitude toward the Army and his work.
 The counselor recommended an immediate change in the applicant's
attitude, that the applicant show respect to his superiors, that he
perform the job he was trained to do, and perform those duties assigned to
him without question.

7.  The applicant was formally counseled on 10 December 1976 for failure
to obey a written instruction of the squadron commander to wit, failure to
get up as directed.  The counselor stated the applicant indicated his
desire to perform his duties in a military manner.  The counselor did not
recommend action under the Uniform Code of Military Justice (UCMJ) at that
time.

8.  The applicant was advanced to pay grade E-2 on 12 December 1976.

9.  The applicant was formally counseled on 11 February 1977, for not
showing to aid in the clean up of his area in the barracks and missing
formation.  It was noted that this was the fourth time he failed to show.
The counselor recommended Article 15 action with restriction to the
barracks.

10.  The applicant was formally counseled on 11 February 1977, for failing
to be in the barracks at 0600 hours on the 8th of February 1977 and being
absent without leave from formation.  The counselor recommended an Article
15 with restriction to the barracks.

11.  On 16 February 1977, the applicant's commander advised him that he was
initiating action to discharge him under the provisions of Army Regulation
635-200, Chapter 13, for unsuitability because of apathy.

12.  On 16 February 1977, after consulting with counsel, the applicant
acknowledged his commander’s notification, waived consideration of his
case by a board of officers and personal appearance before a board of
officers, and elected not to submit a statement in his own behalf.  He
indicated that he understood that if he was issued a general discharge
under honorable conditions, he might expect to encounter substantial
prejudice in civilian life.


13.  On 16 February 1977, the applicant's commander submitted a
recommendation for administrative elimination of the applicant from the
United States Army under the provisions of Army Regulation 635-200.  He
stated that the applicant had repeatedly demonstrated that he had no
potential for continued active service.  The applicant was very hard to
keep up with, missed many formations, and shirked those jobs assigned.  The
applicant continually displayed a recalcitrant attitude and would not
conform to the standards set.  He also stated that rehabilitation would not
produce the quality Soldier desired by the Army.

14.  On 24 February 1977, he was punished under Article 15, UCMJ, for
failing to go at the time prescribed to his appointed place of duty.  His
punishment included reduction to pay grade E-1, forfeiture of $187.00 per
month for one month, and 30 days extra duty.

15.  On 16 March 1977, the applicant's senior commander recommended
approval of a request for waiver of rehabilitative transfer under the
provisions of Army Regulation 635-200, Chapter 13, paragraph 13-8.  He
stated that the applicant had an apathetic attitude toward the unit and the
United States Army.  The applicant could not complete the simplest task
without constant supervision. The applicant had been counseled on numerous
occasions but to no avail.

16.  On 23 March 1977, the appropriate separation authority approved the
applicant's discharge under the provisions of Chapter 13, Army Regulation
635-200 and directed issuance of a General Discharge Certificate.

17.  On 23 March 1977, the Adjutant, Headquarters, 2d Brigade, 2d Armored
Division, Fort Hood, Texas, in a letter, advised the applicant his
discharge had been directed under the provisions of Army Regulation 635-
200, Chapter 13.  A copy of the proceedings was provided to him.  The
applicant acknowledged the notification and acknowledged receipt of the
copy of the proceedings.

18.  On 13 April 1977, the applicant was discharged under the provisions of
Army Regulation 635-200, Chapter 13-5b, for unsuitability-apathy, defective
attitude or inability to expend effort constructively, in pay grade E-1.
He was credited with 1 year, 5 months, 7 days net active service.

19.  On 11 December 1978, the Army Discharge Review Board (ADRB) denied the
applicant's petition to upgrade his discharge.

20.  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.

21.  Army Regulation 635-200, sets forth the requirements and procedures
for the administrative discharge of enlisted personnel.  Chapter 13 of this
regulation, in effect at the time, provides for separation due to
unsuitability when in the commander’s judgment the individual will not
become a satisfactory Soldier; retention will have an adverse impact on
military discipline, good order and morale; the service member will be a
disruptive influence in the future; the basis for separation will continue
or recur; and/or the ability of the service member to perform effectively
in the future, including potential for advancement or leadership, is
unlikely.  Service of Soldiers separated because of unsatisfactory
performance under this regulation will be characterized as honorable or
under honorable conditions.  At the time of the applicant's separation, the
regulation provided for the issuance of a General Discharge Certificate.

22.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable
discharge is a separation with honor.  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,
or is otherwise so meritorious that any other characterization would be
inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not
entitled to an upgrade of his discharge.  The applicant has submitted
neither probative evidence nor a convincing argument in support of his
request and has not shown error, injustice, or inequity for the relief, he
now seeks.

2.  The applicant's contentions have been noted; however the applicant’s
records show he was punished under Article 15, UMCJ, and received six
counseling statements concerning his poor attitude and performance.  The
applicant's commander stated that the applicant had repeatedly demonstrated
that he had no potential for continued active service and rehabilitation
would not produce the


quality Soldier desired by the Army.  The applicant’s overall performance
demonstrated that he had no potential for continued active service and
diminished the quality of his service below that meriting a fully honorable
discharge.

3.  The evidence of record confirms the applicant’s discharge processing
was accomplished in accordance with applicable regulations and that the
type of discharge directed and the reasons therefore 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 last reviewed by the ADRB on 11 December 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 10 December 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.

5.  In view of the foregoing, there is no basis for granting the
applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JCR__   __DWT__  __REB __  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.




                                  _____Jeffrey C. Redmann_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060008550                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070118                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19770413                                |
|DISCHARGE AUTHORITY     |AR635-200, chapter 13-5b                |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |A70                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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