RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         30 NOVEMBER 2004
      DOCKET NUMBER:  AR2004102662


      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. Carl W. S. Chun               |     |Director             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Patrick McGann                |     |Member               |
|     |Ms. Shirley Powell                |     |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 1972 discharge under other than
honorable conditions be upgraded.

2.  The applicant states he was “young and stupid out of school and a boy
not a man.”  He states that he “got drunk to much and had personal problems
and just couldn’t handle [it].”

3.  The applicant states that everyone, even the President was granted
amnesty, and as such his discharge is in error or unjust.  He states that
he is older and wiser now and does not drink.  He states that he needs
help, but his “discharge can’t help” him.

4.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 3 April 1972.  The application submitted in this case is
dated
12 January 2004.

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 limitation 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.  Records available to the Board indicate that the applicant was 17 years
old when he enlisted in the United States Army on 20 May 1971.  He had 8
years of formal education and a GT (general technical) score of 60.

4.  In July 1971, while undergoing training, the applicant commenced a
series of AWOL (absent without leave) periods which ultimately resulted in
his conviction by one summary court-martial and once being punished under
Article 15 of the Uniform Code of Military Justice.

5.  On 1 March 1972, while in pre-trial confinement at the Personnel
Confinement Facility at Fort Riley, Kansas, his commander recommended that
he be discharged under the provisions of Army Regulation 635-212, for
unfitness.
6.  The commander noted that the applicant’s offenses met the criteria for
such a separation, that a mental status evaluation showed no mental
conditions which warranted discharged via medical channels, and that his
negative attitude and discreditable conduct, outweighed consideration of a
discharge for character and behavior disorders.

7.  The applicant consulted with counsel and acknowledged receipt of the
proposed separation.  He states that he understood the basis for the
separation, and that he could expect to encounter substantial prejudice in
civilian life and may be ineligible for veterans’ benefits if he received
an undesirable discharge.  He waived his entitlement to have his case
considered by a board of officers and to submit statements in his own
behalf.

8.  The recommendation was approved and on 3 April 1972 he was discharged
under other than honorable conditions and was issued an undesirable
discharge certificate.  At the time of his separation he had 5 months and
12 days of creditable service and more than 150 days of lost time due to
AWOL and confinement.

9.  Army Regulation 635-212, in effect at the time, set forth the basic
authority for the administrative separation of enlisted personnel.  It
provided for the separation for unfitness as a result of a variety of
situations, including frequent incidents of a discreditable nature with
civil or military authorities; drug addiction or the unauthorized use or
possession of habit-forming drugs or marijuana; an established pattern of
shirking; and an established pattern of dishonorable failure to pay just
debts or to contribute adequate support to dependents.  When separation for
unfitness was warranted an undesirable discharge was normally considered
appropriate.

10.  Presidential Proclamation 4313 was issued in September 1974 by
President Ford.  It identified three categories of persons and permitted
them to apply for a clemency discharge.  Those categories were civilian
fugitives who were draft evaders, members of the military who were still
AWOL, and former military members who had been discharged for desertion,
AWOL or missing movement.  Those individuals who were AWOL were afforded
the opportunity to return to military control and accept an undesirable
discharge or stand trial.  For those who elected to earn a clemency
discharge, (AWOL's and discharged members) they could be required to
perform up to 24 months alternate service.  Upon successful completion a
clemency discharge would be issued.  In any event, the clemency discharge
did not affect the individual's underlying discharge, and did not entitle
the individual to any veterans’ benefits.

11.  Presidential Memorandum of 19 January 1977 was signed by President
Ford as he left office, and extended his Vietnam Era Clemency Program to
provide that approximately 700 deserters who had been wounded in Vietnam or
who had earned an award for valor would have their discharges upgraded to
one under honorable conditions.

12.  Department of Defense Special Discharge Review Program, often referred
to as the "Carter Program," was announced on 29 March 1977.  The program
mandated upgrade of administrative discharges if the applicant met one of
seven specified criteria.  This program, required, in the absence of
compelling reasons to the contrary, that a discharge upgrade to either
honorable or general be issued in the case of any individual who had either
completed a normal tour of duty in Southeast Asia, been wounded in action,
been awarded a military decoration other than a service medal, had received
an honorable discharge from a previous period of service, or had a record
of satisfactory military service of 24 months prior to discharge.
Consideration of other factors, including possible personal problems which
may have contributed to the acts which led to the discharge, and a record
of good citizenship since the time of discharge, would also be considered
upon application by the individual.

13.  The applicant applied to the Army Discharge Review Board (ADRB) to
upgrade his discharge.  On 21 March 1979 the ADRB determined that the
applicant’s discharge was proper and equitable and that the discharge was
properly characterized as under other than honorable conditions.

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 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 he was young and, in effect, immature
and may have had personal problems is noted.  However, other than his
youthfulness, he has submitted no other evidence which supports his
argument to upgrade his discharge.

2.  The applicant’s statement that everyone else was given “amnesty” is
without foundation.  It is possible that he is referring to discharge
programs instituted after the Vietnam War which were intended to help
veterans’ and citizens come to terms with war time issues.  However, while
the applicant may have been eligible to apply for a clemency discharge
under Presidential Proclamation 4313, there is no evidence that he ever did
or that he completed the required alternate service.  At any rate, even if
he had applied, completed the service, and been issued the clemency
discharge, it would not have changed the underlying basis for his discharge
and would not have enabled him to receive Veterans’ benefits.

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

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 21 March 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 20 March 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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JNS _  ___PM __  ___SP __  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 N. Slone_______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004102662                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20041130                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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