RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 January 2007
      DOCKET NUMBER:  AR20060008678


      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. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Bernard Ingold                |     |Chairperson          |
|     |Mr. Ronald Gant                   |     |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, in effect, that his general under honorable
conditions discharge be changed to honorable.

2.  The applicant states, in effect, that he would like his discharge
changed or he would like to receive a paper [Honorable Discharge
Certificate].  He states he cannot obtain employment with the Government
unless his discharge is changed.

3.  The applicant provides no additional documents in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 12 August 1976.  The application submitted in this case is
dated 26 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 enlisted in the Regular Army on 28 October 1975.  He
completed basic combat training at Fort Knox, Kentucky.  He was reassigned
to Fort Lee, Virginia for advanced individual training (AIT).  He was
advanced to private E-2 on 28 February 1976.

4.  On 19 March 1976, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice (UCMJ) for being absent
without leave (AWOL) from 8 March 1976 to 15 March 1976.  His punishment
consisted of a reduction to private E-1; a forfeiture of $100.00 pay per
month for 2 months; restriction to the company area, as prescribed by the
company commander, excluding place of worship, place of duty, authorized
dining facility and medical treatment facilities for 15 days; and
performance of extra duty for 15 days.

5.  At the completion of AIT, he was awarded military occupational
specialty 76W (Petroleum Supply Specialist).

6.  On 28 June 1976, the applicant was counseled for his less than
responsible approach to maintaining his personal appearance and living
area.  He was counseled regarding his integrity in that he utilized
misleading statements to obtain advanced pay.  The applicant subsequently
used the greater portion of this money to become intoxicated and was
charged by civilian authorities with breach of peace, drunk and disorderly,
and assault of a policeman.

7.  The applicant was counseled on 6 July 1976 regarding his AWOL status.
He falsely indicated that he had injured himself in a vehicle accident
returning to Fort Lee.  He was advised to return to his unit and he did not
return from AWOL until 4 August 1976.  The commanding officer recommended
the applicant be discharged expeditiously as possible.

8.  On 6 August 1976, the applicant was notified of his proposed discharge
under the provisions of Army Regulation 635-200, paragraph 5-37
(Expeditious Discharge Program).  His unit commander recommended that he be
furnished a General Discharge Certificate.  The commander cited as the
basis for the proposed separation the applicant's poor attitude, his lack
of self-discipline and his lack of motivation.  The unit commander cited
the applicant’s two periods of AWOL; his arrest by civil authorities for
assault, drunk and disorderly, breach of peace; and his low standards of
appearance and housekeeping.  He was advised of his rights.

9.  The applicant acknowledged notification of his proposed discharge from
the United States Army under the provisions of Army Regulation 635-200,
paragraph 5-37, he voluntarily consented to this discharge, consulted with
legal counsel, and he did not submit statements in his own behalf.  He
acknowledged that he might expect to encounter substantial prejudice in
civilian life if he was issued a general under honorable conditions
discharge.

10.  On 7 August 1976, the separation authority approved the recommendation
for separation and directed issuance of a General Discharge Certificate.

11.  On 8 August 1976, the applicant accepted nonjudicial punishment under
Article 15, UCMJ for being AWOL from 8 July 1976 to 4 August 1976.  His
punishment consisted of a forfeiture of $84.00 pay per month for one month.

12.  He was discharged on 12 August 1976 under the provisions of Army
Regulation 635-200, paragraph 5-37.  He completed 8 months and 11 days of
active military service with 34 days of lost time due to AWOL.

13.  On 10 November 1981, the Army Discharge Review Board (ADRB) denied the
applicant’s request for a change in the narrative reason.
14.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel from the Army.  Paragraph 5-37 of this
regulation, in effect at the time, governed the Expeditious Discharge
Program.  This program provided for the separation of service members who
had a poor attitude, who lacked the necessary motivation, discipline,
ability to adapt socially or emotionally or failed to demonstrate promotion
potential.  Under this regulation, a general or an honorable discharge was
considered appropriate.  Further, the regulation stated that no individual
would be given a general discharge by the separation authority unless the
commander initiating the action for separation recommended it and the
Soldier had the opportunity to receive legal counsel.

15.  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, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.

16.  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.  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.

2.  The applicant’s service record shows he received nonjudicial punishment
under Article 15, UCMJ on two occasions for being AWOL for a total of 34
days.  His counseling statement indicates he was charged by civilian
authorities with breach of peace, drunk and disorderly, and assault of a
policeman.

3.  It appears the chain of command determined that the applicant's overall
military service did not meet the standards for an honorable discharge as
defined in Army Regulation 635-200 and appropriately characterized his
service as general under honorable conditions.

4.  The applicant has failed to show through the evidence submitted or the
evidence of record that the type of discharge he received was in error or
unjust.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 10 November 1981.
As a result, the time for the applicant to file a request for correction of
any error injustice to this Board expired on 9 November 1984.  The
applicant did not file within the ABCMR's 3-year statute of limitations and
has not provided 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

BI______  RG______  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.




                                  Bernard Ingold________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060008678                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20070111                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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