RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 February 2005
      DOCKET NUMBER:  AR20040000711


      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             |
|     |Mr. W. W. Osborn, Jr.             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |Member               |
|     |Ms. Laverne V. Berry              |     |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, upgrade of his discharge under other
than honorable conditions (UOTHC) and change in his service entry date to 1
May 1975.

2.  The applicant states that he has an honorable discharge from his first
enlistment and wants his second discharge upgraded.  His UOTHC discharge
was caused by addiction that he acquired while in the service.  He is done
with his addiction but has employment problems.  He wants his service entry
date changed because a "waiver" of 4 months would qualify him for Vietnam
era benefits administered by the Department of Veteran Affairs (VA).

3.  The applicant provides a copy of his 28 February 1980 DD Form 214
(Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 28 February 1980.  The application submitted in this case is
dated 22 April 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.  The applicant's military records show he enlisted and entered active
duty on 22 September 1975, completed training and was posted to Germany.
On 22 March 1978 he was discharged with an honorable characterization of
service to reenlist.  He reenlisted on 23 March 1978 and was transferred to
Berlin.

4.  A 20 November 1979 Clinical Record Narrative Summary shows he was
admitted for in-patient rehabilitation for morphine addiction on 19 October
1979.  He was to be released from the hospital and returned to full duty.
However, he was "prematurely discharged on the next to last day of program
for alleged selling of drugs."

5.  At a  4 December 1979 mental status evaluation (MSE) the applicant's
behavior was normal.  He was fully alert and oriented and displayed an
unremarkable mood.  His thinking was clear, his thought content normal and
his memory good.  There was no significant mental illness.  The applicant
was mentally responsible.  He was able to distinguish right from wrong and
to adhere to the right.  Block 9 of the MSE form reads "Chp 9," which
indicates that he was being processed for drug rehabilitation failure.

6.  Charges were preferred against the applicant for larceny of a $60.00
camera from the post exchange on 9 January 1980.

7.  A 18 January 1980 letter to the commanding general recommending
referral of the charge to a special court-martial noted that the applicant
had received non-judicial punishment under Article 15, Uniform Code of
Military for offenses of possession of marijuana, willful disobedience and
possession of heroin.

8.  On 1 February 1980, after consulting with counsel and being advised of
his rights and options, the applicant submitted a formal request for
discharge for the good of the service in lieu of trial by court-martial
under the provisions of Army Regulations 635-200, chapter 10.  He
acknowledged he had been advised of and understood his rights under the
Uniform Code of Military Justice.  He admitted that he was guilty as
charged or guilty of a lesser included offense for which he could receive a
punitive discharge.  He indicated that he understood he could receive an
UOTHC discharge, which would deprive him of many or all of his benefits as
a veteran.  He acknowledged that he could expect to experience substantial
prejudice in civilian life if he received an UOTHC discharge, and that
there is no automatic upgrading or review of a less than honorable
discharge.

9.  The separation authority approved the applicant 's request and directed
that a UOTHC discharge be issued.  The applicant was discharged on
28 February 1980.

10.  On 15 April 1982 the Army Discharge Review (ADRB) denied the
applicant's request to upgrade his discharge.

11.  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.

12.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of that regulation provides,
in pertinent part, that a member who has committed an offense or offenses
for which the authorized punishment includes a punitive discharge may
submit a request for discharge for the good of the service in lieu of trial
by court-martial.  The request may be submitted at any time after charges
have been preferred and must include the individual's admission of guilt.
Although an honorable or general discharge is authorized, a discharge under
other than honorable conditions is normally considered appropriate.

13.  Chapter 9 of the regulation contains the authority and outlines the
procedures for discharging individuals because of alcohol or other drug
abuse.  A member who has been referred to ADAPCP for alcohol/drug abuse may
be separated because of inability or refusal to participate in, cooperate
in, or successfully complete such a program if there is a lack of potential
for continued Army service and rehabilitation efforts are no longer
practical.  At that time an honorable of general discharge was authorized.

14.  The Table of Maximum Punishments in the Manual for Courts-Martial
shows that a punitive discharge is authorized for any larceny offense.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, for the good of the service, to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.

2.  The type of discharge directed and the reasons therefore  were
appropriate considering all the facts of the case.

3.  The applicant clearly had a drug problem prior to the discharge.
However, this does not mitigate the behavior that led to the discharge,
especially when he would have been separated with a better discharge for
rehabilitation failure had he simply stayed out of further trouble.

4.  The applicant's desire to be eligible for Vietnam era benefits
administered by the VA has been noted; however, VA benefits are neither
under the purview of this board nor a basis for granting relief.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 April 1982 the date the ADRB denied
his request for upgrade.  Therefore, the time for the applicant to file a
request for correction of any error or injustice expired on 14 April 1985.
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

_JRS____  __FE ___  __LVB __  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.




                                  _             Fred Eichorn____________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040000711                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050210                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19800228                                |
|DISCHARGE AUTHORITY     |AR 635-10, ch 10                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |A93.17/19                               |
|2.                      |A92.19                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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