RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 May 2007
      DOCKET NUMBER:  AR20060016463


      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:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Jerome L. Pionk               |     |Member               |
|     |Mr. Eddie L. Smoot                |     |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 general discharge be upgraded to
honorable.

2.  The applicant states that he enlisted in the California Army National
Guard (CAARNG) in December 1970 (sic).  In April 1974, he received an
appointment to the Los Angeles Police Academy.  During his Academy training
he still was able to attend drills and training.  His career with the Los
Angeles Police Department (LAPD) did not seem to be a problem with his
CAARNG unit until sometime in 1976.  At that time he was given a
promotional assignment to work in a Special Investigation Unit and at times
be undercover.  He so advised his unit, B Battery, and at first was told it
would not create a problem due to his having to grow a beard, leave his
hair somewhat long, etc.

3.  The applicant states that after a couple of months it seemed that some
of the staff in his unit felt he was receiving special treatment.  He did
equivalent time assignments during his days off from the LAPD.  Some of the
unit staff advised him he would have to attend regular drills and appear
clean shaven and with short hair.  After discussing the matter with his
chain of command, he was transferred to Headquarters Battery.  He was
promoted to Specialist Four and was put in for Acting Sergeant.

4.  The applicant states that during one of their summer camps the Red
Cross contacted his unit and advised his unit his mother was hospitalized
with cancer.  He was allowed to go to his family.  He went back to
California a few days later and finished his summer camp training with
Headquarters Battery.  It was during that time that he kept hearing rumors
that a sergeant in B Battery thought he (the applicant) planned “getting
out” of summer camp with B Battery and that the whole story of his mother
being near death was a hoax.  His commander at Headquarters Battery told
him to “let it go” and that he would be discharged soon anyway.

5.  The applicant states his general discharge did not affect his
employment with the LAPD.  He retired there as a detective and is running a
well-established investigation business doing overseas work for several
entities, including the government.  But it means something to him.  He was
sent orders stating he was discharged effective 14 December 1977 by reason
of expiration of term of service (ETS), yet the orders say he received a
general discharge.  He served for nearly all his enlistment without ever
having any disciplinary action taken against him and his only offense was
trying to better himself with his employment as an LAPD officer.  Years ago
he asked what he could do about his discharge and was told he would need an
attorney and it would cost over $3,000.00.  That was more than he could
afford.
6.  The applicant provides his discharge orders and a copy of a photograph.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 14 December 1977.  The application submitted in this case is
dated              15 November 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 complete military records are not available to the
Board.  This case is being considered using reconstructed records which
primarily consist of his enlistment contract; his enlistment/release from
active duty physicals; his DD Form 214 (Armed Forces of the United States
Report of Transfer or Discharge); his discharge orders; and his National
Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service).

4.  The applicant enlisted in the CAARNG on 15 December 1971 for 6 years.
He served on initial active duty for training from 28 January through 28
May 1972 and was awarded military occupational specialty 13A (Field
Artillery Basic).

5.  The applicant’s NGB Form 22 shows he was discharged from the CAARNG and
as a Reserve of the Army on 14 December 1977 upon his ETS, in the rank of
Private, E-2 with a date of rank of 2 August 1977, with a general
discharge. His discharge orders show he was discharged with a general
discharge under the provisions of National Guard Regulation 600-200.

6.  The applicant’s NGB Form 22 also shows he had seven periods of absence
without leave (AWOL): 4 June 1977 (two periods); 23 – 24 July 1977 (four
periods); 6 – 7 August 1977 (four periods); 9 – 10 – 11 September 1977
(five periods); 15 – 16 October 1977 (four periods); 18 – 19 – 20 November
1977 (five periods); and 2 – 3 – 4 December 1977 (five periods).

7.  National Guard Regulation 600-200 (Enlisted Personnel Management), the
version in effect at the time, stated each enlisted person discharged from
the ARNG under the provisions of this regulation would be furnished an
appropriate certificate of a type to be determined solely by the member’s
record of military service.  As the type of discharge could significantly
influence the individual’s civilian rights and eligibility for benefits
provide by law, it was essential that all pertinent factors be considered
so that the type of discharge would reflect accurately the nature of the
service rendered.  The discharge of an individual from his status in the
ARNG was a function of the State military authorities in accordance with
State laws and regulations; however, due to the dual status of the
individual as a Reserve of the Army, the criteria contained in Army
Regulation 635-200 should have been used as a guide in determining those
factors that governed the issuance of honorable, general, and under other
than honorable conditions discharge certificates.

8.  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.

9.  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.

10.  The 20 March 1987 version and the current version of National Guard
Regulation 600-200 state that the honorable characterization must be
awarded to a Soldier upon ETS.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been carefully considered.
Unfortunately, the only evidence of record available at this point in time
shows that the applicant had seven periods of AWOL during his last six
months in the ARNG.  There is no evidence of record to show any mitigating
circumstances regarding those AWOLs nor is there a record of the quality of
his service during the preceding five years.

2.  Based on the only available evidence of record, it appears the
applicant’s commander made a justifiable decision to issue him a general
discharge certificate upon his ETS, an action that was within regulatory
guidance at the time.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 December 1977; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on    13 December 1980.  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

__lds___  __jlp___  __els___  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.




                                  __Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060016463                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070508                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19771214                                |
|DISCHARGE AUTHORITY     |NGR 600-200                             |
|DISCHARGE REASON        |A03.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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