RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 April 2007
      DOCKET NUMBER:  AR20060012439


      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. Kenneth L. Wright             |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Ms. Ernestine I. Fields           |     |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 be upgraded.

2.  The applicant states that in the latter months of 1973 he was having
tremendous hardship with his pregnant future wife.  He was 18 years old and
involuntarily stationed at Fort Benning, GA because his two previous
stations of choice were not available.  His pregnant future wife, whom he
brought from Colorado, was forced to live with his mother in Virginia.  He
discussed his situation with his battalion commander, who was working on
getting him a hardship discharge.  He wife could not wait.  She left
Virginia and he wanted to be with her, so he disobeyed a sergeant’s direct
order to clean the toilet bowl with his bare hands and was placed in close
confinement.  Then he requested to be discharged.  Love would not let him
wait.

3.  The applicant provides 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 18 January 1974.  The application submitted in this case is
dated 20 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 was born on 17 November 1954.  He enlisted in the Regular
Army on 6 July 1972.  He completed basic combat training and advanced
individual training and was awarded military occupational specialty 11H
(Infantry Direct Fire Crewman).

4.  On 23 April 1973, the applicant was convicted by a special court-
martial of two specifications of striking a noncommissioned officer.  He
was sentenced to confinement at hard labor for 3 months, to forfeit $200.00
pay per month for        3 months, and to be reduced to pay grade E-1.

5.  On 2 October 1973, the applicant accepted non-judicial punishment under
Article 15, Uniform Code of Military Justice for behaving with disrespect
toward his superior commissioned officer and for disobeying a lawful order
from his superior noncommissioned officer to pull his desk draws out and
wipe them down with a wet rag.

6.  On 2 November 1973, the applicant was placed in pre-trial confinement.

7.  On 5 November 1973, charges were preferred against the applicant
charging him with disobeying a lawful order from his superior
noncommissioned officer to clean the urinals; with being disrespectful in
language towards his superior noncommissioned officer by saying to him,
“I’m gonna whip your ass if you keep f---ing with me,” or words to that
effect; and with wrongfully communicating a threat to injure his superior
noncommissioned officer by saying, “I will do you in before I leave here”
and by picking up a metal cable spool and saying ”you know I can smash your
head with this.”

8.  On 21 November 1973, the applicant completed a separation physical and
was found qualified for separation.

9.  On 21 November 1973, the applicant completed a mental status
evaluation.  He was found to have no significant mental illness, to be
mentally responsible, to be able to distinguish right from wrong and able
to adhere to the right, and to have the mental capacity to understand and
participate in board proceedings.

10.  The applicant’s discharge packet is not available.

11.  On 18 January 1974, the applicant was discharged, in pay grade E-1,
under the provisions of Army Regulation 635-200, chapter 10, for the good
of the service with a discharge under other than honorable conditions.  He
had completed 1 year and 4 months of creditable active service and had 74
days of lost time.

12.  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 at
any time after the charges have been preferred, 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.  A discharge under
other than honorable conditions is normally considered appropriate.

13.  On 24 September 1979, the Army Discharge Review Board (ADRB) denied
the applicant's petition to upgrade his discharge.

14.  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.

15.  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.

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the
applicant’s discharge proceedings were conducted in accordance with law and
regulations applicable at the time.

2.  The applicant contended that in the latter months of 1973 he was having
tremendous hardship with his pregnant future wife.  He was separated from
her, and she could not wait for him to get a hardship discharge.  He
contends she left Virginia and he wanted to be with her, so he disobeyed a
sergeant’s direct order to clean the toilet bowl with his bare hands, was
placed in close confinement, and then he requested a discharge.

3.  However, the evidence of record shows the applicant’s misconduct
started in early 1973, when he twice struck a noncommissioned officer.  As
one of the charges that resulted in his separation was a similar incident
(wrongfully communicating a threat to injure his superior noncommissioned
officer), it appears there was a valid reason to place him in pre-trial
confinement.

4.  The applicant’s record of misconduct does not warrant granting the
relief requested.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 24 September 1979.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 23 September 1982.
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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__klw___  __lmd___  __eif___  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.



                                  __Kenneth L. Wright___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060012439                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070410                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19740118                                |
|DISCHARGE AUTHORITY     |AR 635-200, ch 10                       |
|DISCHARGE REASON        |A70.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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