RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 June 2007
      DOCKET NUMBER:  AR20060017050


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Ms. Loretta D. Gulley             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. William F. Crain              |     |Member               |
|     |Mr. Dean A. Camarella             |     |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, to upgrade his character of service
to general under honorable conditions.

2.  The applicant states, in effect, that he was in a retraining brigade
and did not want to be retrained.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation
from Active Duty.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 24 September 1975, the date of his release from active
duty.  The application submitted in this case is dated 27 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 record shows that he enlisted in Regular Army on
11 August 1972 for a period of 3 years.  His enlistment contract shows that
he enlisted for the training of choice option in military occupational
specialty (MOS) 63B (Truck Mechanic).  The highest grade he attained was
pay grade E-1.

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

5.  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), for being absent without leave
(AWOL) from
3-18 December 1972.  The resultant punishment was a forfeiture of $150.00
pay for 2 months, and restriction to the company area for 15 days.


6.  The applicant also accepted NJP under the provisions of Article 15 of
the UCMJ, for failing to go to his prescribed place of duty on 19 November
1973.  The resultant punishment was a forfeiture of $50.00 pay, and 14 days
of extra duty.

7.  The applicant accepted NJP under the provisions of Article 15 of the
UCMJ, for failing to go to his prescribed place of duty on 1 March and on 4
March 1974.  The resultant punishment was a forfeiture of $84.00 pay, and
confinement in the Correction Custody Facility for 7 days.

8.  On 20 August 1973, the applicant was convicted by a summary court-
martial of two periods of being AWOL from 9-16 April 1975 and from 5-12 May
1975, two counts of failing to obey lawful orders, one count of wrongfully
using provoking words, and two counts of assault.  His sentence consisted
of hard labor with confinement for 4 months and a forfeiture of $150.00 pay
for 4 months. 

9.  On 18 September 1975, his unit commander notified the applicant that he
was initiating action to separate him under the provisions of Army
Regulation
635-200, paragraph 13-5, for unfitness based on frequent incidents of a
discreditable nature.  The unit commander based this action on the
applicant’s disciplinary history, and his performance and conduct related
infractions.

10.  On 18 September 1975, the applicant consulted with legal counsel and
was advised of the basis for the contemplated action and the rights
available to him.  The applicant waived his right and he did not submit
statement on his own behalf.  He acknowledged that he understood that he
would have less than
6 years of total active and/or reserve military service at the time of
separation; therefore, he was not entitled to have his case heard by a
board of officers.  He also understood that he may expect to encounter
substantial prejudice in civilian life if a less than honorable discharge
was issued to him.

11.  On 24 September 1975, a Mental Status Evaluation and a physical
examination cleared the applicant for separation.

12.  On 22 September 1975, the separation authority approved the
separation, waived rehabilitation and directed that the applicant be
separated with an Undesirable Discharge Certificate.

13.  On 24 September 1983, the applicant was discharged under the
provisions of Army Regulation 635-200, paragraph 13-5a(1), with an under
other than honorable conditions character of service.  The DD Form 214 he
was issued confirms he completed a total of 2 years and 18 days of
creditable active military service and that he accrued 342 days of time
lost due to being AWOL.

14.  On 10 February 1984, the Army Discharge Review Board denied the
applicant's petition for an upgrade of his discharge.

15.  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.

16.  Army Regulation 635-200 (Personnel Separations) sets forth the
requirements and procedures for administrative discharge of enlisted
personnel.  Chapter 13 (Separation for Unfitness or Unsuitability) of this
Army regulation provides the procedures and guidance for eliminating
enlisted personnel found to be unfit or unsuitable for further military
service.  An individual separated by reason of unfitness will be furnished
an undesirable discharge certificate, except that an honorable or general
discharge certificate may be issued if the individual has been awarded a
personal decoration or if warranted by the particular circumstances in
their case.

17.  Army Regulation 635-200, paragraph 3-7, 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.

18.  Army Regulation 635-200, paragraph 3-7, 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.
19.  Army Regulation 635-5 (Personnel Separation-Separation Documents)
prescribes the separation documents that must be prepared for soldiers.  It
states, in pertinent part, that a DD Form 214 will be prepared for all
personnel at the time of their retirement, discharge or release from Active
Army.

20.  Paragraph 13 of Army Regulation 635-5, in effect at that time,
indicates that Item 9e (Character of Service) of the DD Form 214 would show
the authorized entries for characterization of service.  The instructions
stipulate that the following entry will be made in item 9e (Character of
Service) Honorable, Under Honorable Conditions (General), Under Other Than
Honorable Conditions, Bad Conduct, Dishonorable, To be determined, Not
applicable."

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered and found to be
insufficient in merit.

2.  The evidence of record shows that the applicant was convicted during a
special court-martial trial and received three nonjudical punishments.

3.  The evidence of record confirms that all requirements of law and
regulation were met and the applicant’s rights were fully protected
throughout the separation process.  The record further shows the
applicant’s discharge accurately reflects his overall record of
undistinguished service.

4.  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.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 10 February 1984.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 9 February 1987.  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

___JTM __  ___WFC   ___DAC_  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 appear in the interest of justice to
excuse the applicant’s failure to timely file this application within the 3-
year statue of limitations prescribed by law.  Therefore, this insufficient
basis to waive the statue of limitations for timely filing or for
correction of the records of the individual concerned.




                                           _John T. Meixell______
                                            CHAIRPERSON


INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/06/28                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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