RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 April 2007
      DOCKET NUMBER:  AR20060014512


      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      |
|     |Ms. Loretta D. Gulley             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. David K. Haasenritter         |     |Member               |
|     |Mr. John G. Heck                  |     |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 under honorable conditions (general)
discharge be upgrade to an honorable discharge.

2.  The applicant states, in effect, that his under honorable conditions
discharge was automatically upgraded to an honorable discharge and then the
discharge reverted back to an under honorable conditions discharge.

3.  The applicant provided a copy of a memorandum from the Department of
Veterans Affairs dated 13 February 1995, in support of this application.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an alleged error which
occurred on 27 July 1976.  The application submitted in this case is dated
3 October 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 Army on 29 August 1975, for a period of
3 years.  He completed basic and advanced individual training and was
awarded the military occupational specialty 12B (Combat Engineer).  The
highest grade he attained was private, pay grade E-1.

4.  The applicant's record documents no acts of valor, significant
achievement or service warranting special recognition.

5.  A Department of Veterans Affairs memorandum dated 13 February 1995,
indicated that the applicant’s character of discharge (as certified to VA
by military branch of service or shown on official military documents) was
honorable.

6.  On 7 June 1976, the applicant was convicted by a special court-martial
of one specification of disobeying a lawful order on 20 April 1976.  He was
sentenced to a forfeiture of $200.00 pay, and 20 days of confinement at
hard labor.

7.  The record reveals a disciplinary history that includes his acceptance
of nonjudicial punishment (NJP) under the provisions of Article 15 of the
Uniform Code of Military Justice (UCMJ) on three separate occasions for the
following offenses:  On 5 April 1976 for possessing an unregistered 32
caliber revolver, on
9 July 1976, for failure to go to his appointed place of duty, and on 10
July 1976 for failure to go to his appointed place of duty.  His
punishments included a reduction to pay grade E-1, a forfeiture of pay,
extra duty, and confinement to the correctional custody facility.

8.  On 15 July 1976, the applicant’s unit commander notified the applicant
that he was initiating action to separate him under the provisions of
Chapter 5-37, Army Regulation 635-200, by reason of unsatisfactory
performance with an under honorable conditions discharge.  The unit
commander based this action on the applicant’s disciplinary history, which
included three NJPs, and one special
court-martial.

9.  On 21 July 1976, the separation authority directed the applicant’s
separation under the provisions of paragraph 5-37, Army Regulation 635-200,
for misconduct and directed that he receive a General Discharge
Certificate.  On
27 July 1976, the applicant was discharged accordingly.  The DD Form 214
issued to him at the time, confirms the applicant completed a total of
10 months, and 18 days of creditable active military service with 11 days
lost time due to AWOL.

10.  There is no indication that the applicant applied to the Army
Discharge Review Board for an upgrade of his discharge within its 15-year
statue of limitations.

11.  Army Regulation 635-200 (Personnel Separations) sets forth the
requirements and procedures for administrative discharge of enlisted
personnel.  Chapter 5-37 of this regulation, in effect at the time,
provides for separation due to unsatisfactory performance 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.

12.  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 (emphasis added), or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.  Whenever there is doubt, it is to be resolved in favor of
the individual.

13.  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.  The applicant contends that his under honorable conditions discharge
should be upgraded to honorable.

2.  The evidence of record shows that the applicant accepted three
nonjudical punishments and received one special court-martial.

3.  There is no evidence, nor did the applicant submit any evidence that he
applied for or received an upgrade to his discharge for the period 29
August 1975 through 27 July 1976.

4.  Based on this record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  Therefore, he is not entitled to an honorable
discharge.

5.  Evidence shows the applicant’s administrative separation was
accomplished in compliance with applicable regulations and there is no
indication of procedural errors that would tend to jeopardize his rights.
The discharge proceedings were conducted in accordance with law and
regulations applicable at the time and the
character of the discharge is commensurate with the applicant's overall
record of military service.

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

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 27 July 1976; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
26 July 1979.  The applicant did not file within the 3-year statute of
limitations; based on the available evidence, it would not 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 
__JS ____  ___DKH_   ___JGH_  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.




                                  ______John Slone______
                                            CHAIRPERSON





                                    INDEX

|CASE ID                 |AR20060014512                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/04/19                              |
|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. SCHWARTZ                            |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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