RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 May 2007
      DOCKET NUMBER:  AR20060014011


      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      |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. Michael J. Flynn              |     |Member               |
|     |Ms. Rose M. Lys                   |     |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 under other than honorable
conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he had problems adjusting to the
military from civilian life and tooth problems, which caused his actions.
He states that he is now a different person.

3.  The applicant provides a dental treatment record in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 24 January 1977, the date of his discharge.  The
application submitted in this case is dated 20 September 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 record shows that he enlisted in the Regular Army and
entered active duty on 22 September 1975.  He successfully completed basic
combat training and advanced individual training (AIT) at Fort Ord,
California.  Upon completion of AIT, he was awarded military occupational
specialty (MOS) 52B (Power Generator Equipment Repairer), and he was
assigned to Fort Bliss, Texas.  His record documents no acts of valor,
significant achievement, or service warranting special recognition.

4.  The applicant's Personnel Qualification Record (DA Form 2-1) shows, in
Item 18 (Appointments and Reductions), that he was advanced to private/E-2
(PV2) on 22 January 1976, and that this was the highest rank he attained
while serving on active duty.  Item 18 also shows that was reduced to
private/E-1 (PV1) for cause on 10 May 1976.  Item 44 (Time Lost), shows
that he accrued 17 days of time lost due to being absent without leave
(AWOL) from 15 through 31 October 1976.
5.  The applicant's disciplinary history includes his acceptance of non-
judicial punishment (NJP) under the provisions of Article 15 of the Uniform
Code of Military Justice (UCMJ) on the following seven separate occasions
for the offenses indicated:  13 November 1975, for dereliction of duty; 2
March 1976, for drunk on duty; 10 May 1976, for failing to go to his
appointed place of duty;
7 June 1976, for failing to go to his appointed place of duty; 4 October
1976, for failing to go to his appointed place of duty and disobeying a
lawful order;
8 November 1976, for being absent without leave (AWOL) from 15 October
through 1 November 1976; and 2 December 1976, for dereliction of duty and
failing to go to his appointed place of duty.

6.  On 22 December 1976, the unit commander notified the applicant of his
intent to initiate action to separate the applicant under the provisions of
Chapter 13, Army Regulation 635-200, by reason of Misconduct, citing the
applicant's disciplinary record as the basis for the action.

7.  On 23 December 1976, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation and its effects, the
rights available to him, and the effect of a waiver of those rights.
Subsequent to receiving this legal counsel, the applicant waived his right
to have his case considered by a board of officers, his right to personal
appearance before a board of officers, and representation by counsel.  He
also elected not to submit a statement in his own behalf.

8.  On 17 January 1977, the separation authority directed the applicant's
discharge under the provisions of Chapter 13, Army Regulation 635-200, for
misconduct, and that he receive an UOTHC discharge.  On 21 January 1977,
the applicant was discharged accordingly.  The separation document (DD Form
214) the applicant was issued at the time shows he completed a total of 1
year,
3 months, and 16 days of creditable active military service and that he
accrued
17 days of time lost due to AWOL.

9.  On 6 December 1983, the Army Discharge Review Board (ADRB), after
careful consideration of the applicant's case, determined his discharge was
proper and equitable, and it voted to deny his petition to upgrade his
discharge.

10.  The applicant provides a dental treatment record that shows he
received dental treatment on 30 July; 9, 13, 19, and 27 August; and 2, 3,
13, 16, 17, and 20 September 1976.  This document gives no indication that
his dental problems were disabling.


11.  Army Regulation 635-200, sets forth the basic authority for the
separation of enlisted personnel.  Chapter 13, in effect at the time,
provided for the separation of members for misconduct for a pattern of
misconduct.  Although the separation authority could grant an honorable or
general discharge if warranted by the members record of service, an UOTHC
discharge was normally considered appropriate for member separating under
these provisions.

12.  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 Army Discharge Review Board (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 Army Board for Correction of Military Records
(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 contention that his inability to adjust to military
life and tooth problems resulted in his misconduct was carefully
considered.  However, his record shows he successfully completed basic
combat training, which demonstrated an ability to adjust to military life.
Further, there is no indication that the dental condition, for which he was
treated in August and September of 1976, permanently impaired his ability
to serve.  Therefore, these factors are not sufficiently mitigating to
support granting the requested relief.

2.  The evidence of record confirms that the applicant’s discharge
processing was accomplished in accordance with the regulation in effect at
the time.  All requirements of law and regulation were met and the rights
of the applicant were fully protected throughout the separation process.
It is noted that the applicant, after consulting with legal counsel,
elected to waive his right to have his case considered by a board of
officers and he chose not submit a statement in his own behalf.

3.  Further, given the applicant’s extensive disciplinary history, it is
concluded that his discharge accurately reflects his overall record of
service.  Therefore, there was no basis to support an honorable or general
discharge at the time, or that supports an upgrade of his discharge at this
time.

4.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 6 December 1983.
As a result, the time for him to file a request for correction of any error
or injustice to this Board expired on 5 December 1986.  He failed to 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

___RTD__  __MJF__  __RML  _  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.




                                  _____Richard T. Dunbar______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060014011                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/05/03                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1977/01/24                              |
|DISCHARGE AUTHORITY     |AR 635-200 C13                          |
|DISCHARGE REASON        |Misconduct                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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