RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 March 2007
      DOCKET NUMBER:  AR20060012383


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Ms. Linda M. Barker               |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 any mention of an “undesirable” discharge
be removed from his records and that his discharge be upgraded to
honorable.

2.  The applicant states he was told at the time of his discharge that his
discharge was under honorable conditions and could be upgraded to an
honorable discharge later.  He states that in spite of the mention of
further counseling on Lieutenant Colonel P___’s memorandum of 22 January
1975, at no time was he offered any counseling.  His commander attempted to
give him an undesirable discharge.  He requested a board of officers, which
found in his favor and granted him a general discharge under honorable
conditions.  However, his special orders state he received an undesirable
discharge.

3.  The applicant provides his DD Form 214 (Report of Separation from
Active Duty) and one page of his DA Form 20 (Enlisted Qualification
Record).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 25 March 1975.  The application submitted in this case is
dated      16 August 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 19 July 1972.  He
completed basic training and advanced individual training and was awarded
military occupational specialty 76Y (Armorer/Unit Supply Specialist).

4.  On 16 November 1972, the applicant was convicted, in accordance with
his plea, by a special court-martial of unlawfully receiving U. S.
currency, of a value of $40.00, the property of another Soldier, which
property the applicant knew had been stolen.  His sentence was “to have
detained $100.00 pay per month for three months.”

5.  On 11 April 1973, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for being absent
without leave (AWOL) from on or about 5 April 1973 to on or about 10 April
1973.

6.  On 4 October 1973, the applicant accepted NJP under Article 15, UCMJ
for absenting himself from his place of duty and for disobeying a lawful
order issued by his superior commissioned officer.

7.  On 26 March 1974, the applicant accepted NJP under Article 15, UCMJ for
unlawfully striking another Soldier in the head with his hand.

8.  On 13 May 1974, the applicant was convicted, contrary to his pleas, by
a summary court-martial of two specifications of disobeying a lawful order.
 His sentence was to forfeit $100.00 pay per month for one month and to be
restricted for 30 days.

9.  On or about 17 July 1974, the applicant’s commander initiated a bar to
reenlistment on the applicant.  The Army Europe (AE) Form 1107 (Bar to
Enlistment/Reenlistment) indicated the applicant also had one record of
nonpayment of a just debt.  The commander indicated the applicant had been
unresponsive to counseling and to NJP.  Attached was a statement from the
applicant’s supervisor, who stated he tried in many ways to help and
motivate the applicant but with no success.  The applicant signed the bar
to reenlistment on 18 July 1974 and indicated that he did not desire to
submit a statement in his own behalf.  The bar to reenlistment was approved
on 23 September 1974.

10.  On 23 December 1974, the applicant accepted NJP under Article 15, UCMJ
for disobeying a lawful order and for failing to go to his appointed place
of duty.

11.  On 16 January 1975, the applicant underwent a psychiatric evaluation.
The evaluation revealed that the applicant stated his present problem was
in his     off-duty life.  He moved in with the German wife of an American
Soldier, who was serving time in Leavenworth because of trafficking in
drugs.  The wife was also involved and she was under three years of
probation by German police.  She was allegedly pregnant by the applicant.
He wanted to finish his tour and get a European discharge so he could marry
his girlfriend.  He was cleared psychiatrically for whatever administration
action was deemed appropriate by his command.  A rehabilitative transfer to
another unit was recommended.

12.  On an unknown date, separation action under the provisions of Army
Regulation 635-200, chapter 13 for unfitness was initiated.  On 22 January
1975, his battalion commander requested waivers from further counseling and
rehabilitation efforts and recommended an undesirable discharge.
13.  The applicant apparently requested a hearing by a board of officers.
The board proceedings are not available, but the board recommended his
separation with a general under honorable conditions discharge.

14.  Headquarters, U. S. Army Training Center and Fort Dix Special Orders
Number 84, paragraph 206, dated 15 March 1975, discharged the applicant
effective that date with an undesirable discharge.

15.  Headquarters, U. S. Army Training Center and Fort Dix Special Orders
Number 84, paragraph 228, dated 15 March 1975, amended paragraph 206 of
this order to show the applicant was discharged with a general discharge.

16.  On 25 March 1975, the applicant was discharged with a general
discharge under honorable conditions.  He had completed 2 years, 8 months,
and 1 day of creditable active service with 6 days of lost time.

17.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 13, then in effect, contained
the policy and outlined the procedures for separating individuals for
unfitness when they were involved in frequent incidents of a discreditable
nature with civil or military authorities and it was established that
further efforts at rehabilitation were unlikely to succeed or they are not
amenable to rehabilitation measures.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s separation orders were amended to show he was separated
with a general discharge.  A copy of those amended orders will be provided
to him.

2.  The applicant contended that at no time was he offered any counseling.
However, his commander had indicated on the AE Form 1107 that the applicant
had been unresponsive to counseling.  The applicant signed the bar to
reenlistment and indicated he did not desire to submit a statement in his
own behalf.  He could have contested the statement that he had been
unresponsive to counseling at the time, yet he failed to take the
opportunity do so.

3.  The applicant’s military service included two court-martials and four
Articles 15.  The quality of his service did not meet the standards of
acceptable conduct and performance of duty for Army personnel that would
warrant an upgrade of his discharge to fully honorable.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 March 1975; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         24 March 1978.  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

__le____  __lmb___  __mjf___  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.




                                  ____Lester Echols_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060012383                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070329                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19750325YYYYMMDD                        |
|DISCHARGE AUTHORITY     |AR 635-200, ch 13                       |
|DISCHARGE REASON        |A51.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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