RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          24 February 2005
      DOCKET NUMBER:  AR20040002351


      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. Rosa M. Chandler              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Yolanda Maldonado             |     |Chairperson          |
|     |Mr. Ronald Weaver                 |     |Member               |
|     |Mr. Jonathon K. Rost              |     |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 undesirable discharge (UD) be upgraded
to that of a fully honorable discharge.

2.  The applicant states that he was young, inexperienced, and rebellious,
and had little knowledge of the consequences of receiving a UD.  He
believes he would have been a strong candidate for rehabilitation in 1970
if his chain of command had taken an interest in him or if his legal
representative had provided him adequate counsel.  He states in a letter
written to the Board that he was rated average on his conduct and
efficiency ratings; however, his advancement record demonstrates that he
was generally a good Soldier.  Youth, immaturity and the use of drugs
impaired his ability to serve in the military and he felt overwhelmed. He
says he had a problem adjusting to his surroundings and responsibilities
when he returned from Korea.  He started using drugs and he did not care
about anything, to include himself.  He left his unit absent without leave
(AWOL) and he was confined at the stockade when he returned.  He accepted a
UD after a military legal representative told him that he would be released
from the stockade and that he could go home.  The applicant desires that
the Board take into consideration that the use of drugs contributed to the
bad choices that he made more than 32 years ago.

3.  The applicant provides in support of his request ten character
reference letters written by two pastors, his wife, brother-in-law, and co-
workers and friends.  The applicant's character reference letters indicate
that he is a Christian and that he displays good moral character.  He is
honest, trustworthy, hardworking, generous and highly respected in his
community.  The applicant also provides two self-authored letters written
in his own behalf, and a copy of his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 14 June 1971.  The application submitted in this case is date
stamped 26 May 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.  On 6 September 1967, the applicant’s father signed a declaration of
parental consent for him to enlist in the military.  On 30 September 1968,
at age 17, he enlisted in the Regular Army for a period of 3 years.

4.  On 15 September 1967, the applicant enlisted in the Regular Army for a
period of 3 years.  He completed the training requirements and was awarded
military occupational specialty (MOS) 36K (Field Wireman).  On 12 February
1968, the applicant was assigned to Korea with duties in MOS 36K.

5.  On 5 June 1968, MOS 36K was withdrawn and the applicant was awarded MOS
16E (Fire Control Operator).

6.  On 22 October 1968, he was advanced to pay grade E-4, this was the
highest grade that he achieved.  On 11 March 1969, he left Korea and was
assigned to Fort Bliss, Texas.

7.  On 20 August 1969, nonjudicial punishment (NJP) was imposed against the
applicant under the provisions of Article 15, Uniform Code of Military
Justice (UCMJ), for being absent from his unit from 0700 to 1500 hours on
19 August 1969.  His punishments included reduction from pay grade E-4 to
pay grade
E-3 (suspended until 22 November 1969), a forfeiture $49.00 pay for 1
month,
and 14 days of extra duty and restriction.  On 25 August 1969, the
suspended portion of the sentence that provided for reduction to pay E-3
was vacated.

8.  On 6 January 1970, the applicant was convicted by a special court-
martial (SPCM) for being AWOL from his unit from 13 October to 6 November
1969 and for failing to improve his personal appearance on 20 November
1969.  He was sentenced to reduction from pay grade E-3 to pay grade E-1, a
forfeiture of $109.00 pay per month for 2 months, and confinement at hard
labor for 30 days.

9.  On 17 October 1970, the applicant was convicted by a SPCM for being
AWOL from his unit from 30 January to 18 April 1970, 20 April to 5 May
1970, 7 May to 17 June 1970, 25 June to 1 July 1970, 6 July to 17 July
1970, and 13 August to
3 September 1970.  He was sentenced to a forfeiture of $60.00 pay per month
for 4 months, and confinement at hard labor for 4 months.

10.  On 12 February 1971, court-martial charges were preferred against the
applicant for being AWOL from 1-12 February 1971 and 20-27 January 1971,
and for attempting to burn down a building valued at $24,000 property of
the United States Government.

11.  On 12 March 1971, the applicant consulted with legal counsel and
requested discharge for the good of the service in lieu of trial by court-
martial under the provisions of chapter 10, Army Regulation 635-200.  He
was advised that he could receive a UD.  He acknowledged that he understood
the ramifications of receiving a UD and he declined to submit a statement
in his own behalf.

12.  A Criminal Investigation (Division) Command (CID) Report of
Investigation, dated 15 April 1971, disclosed that on 16 February 1971, at
the Correctional Holding Detachment, Stockade, Fort Bliss Texas, the
applicant, after conspiring with five Soldiers who were identified and
others who were not identified, turned off the pilot lights and opened the
gas valves on all the gas space heaters inside the barracks building in the
stockade.  The applicant and the five identified Soldiers conspired to let
the gas build up inside the barracks until the work formation after the
noon meal.  They planned to start a disturbance and a Soldier with whom the
applicant conspired planned to wrap a handkerchief around a padlock, light
the handkerchief and throw it through a window in the barracks.  The reason
for the attempt to burn the stockade was the general discontent over the
alleged new haircut policy which would require the prisoners to have their
hair cut to a length of one inch.

13.  On 27 April 1971, the applicant was admitted to William Beaumont
General Hospital, Fort Bliss, Texas and diagnosed with hepatitis.  A Line
of Duty Investigation, dated 27 April 1971, shows the applicant contracted
hepatitis by the intentional use of harmful and dangerous drugs through the
sharing of a syringe for self-injection.  He admitted to medical personnel
that he had used "methadrine (speed)" and shared needles with individuals
at the stockade that may have been infected with hepatitis.  The applicant
was given an opportunity to provide a statement to investigating officers
and he failed to respond. The applicant was caught smuggling marijuana into
William Beaumont General Hospital and expelled from the hospital for an
unknown length of time.

14.  The applicant was medically and psychiatrically cleared for
separation.

15.  On 3 May 1971, the applicant’s unit commander recommended that the
applicant's request for discharge under chapter 10 be approved with a UD.
The unit commander stated that the applicant had been afforded repeated
opportunities to reform and become a satisfactory Soldier.  He had been
counseled on numerous occasions and he failed to respond to counseling.
Every facility of the command had been at the applicant's disposal and he
failed to take the opportunity to avail himself of them. The unit commander
believed that further efforts to rehabilitate the applicant were
unwarranted due to repeated AWOL offenses, his failure to respond to
counseling and rehabilitative efforts, and because the applicant had been a
disciplinary problem since entry into the Army.

16.  Both the battalion and brigade commanders recommended that the
applicant's request for discharge be approved with a UD.  On 24 May 1971,
the separation authority approved separation with a UD.

17.  On 14 June 1971, the applicant was discharged under the provisions of
chapter 10, Army Regulation 635-200, for the good of the service.  He had
completed 2 years, 9 months and 10 days of active military service.  He
also had 350 days of lost time due to being AWOL and in military
confinement.

18.  The available evidence does not show the applicant has ever applied to
the Army Discharge Review Board (ADRB) for an upgrade of his discharge
within the ADRB's 15-year statute of limitation.

19.  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, at
any time after the charges have been preferred, submit a request for
discharge for the good of the service in lieu of trial by court-martial.  A
discharge under other than honorable conditions is normally considered
appropriate.  However, at the time of the applicant's separation, the
regulation provided for the issuance of a UD.

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.  There is no indication that the
request was made under coercion or duress.  There is also no evidence of
ineffective counsel and the applicant has provided no evidence to the
contrary.

2.  Both the type (characterization) of discharge directed and the reason
for discharge were appropriate considering the facts of the case.

3.  The applicant's conduct was inconsistent with the Army’s standards for
acceptable personal conduct and his overall quality of service does not
warrant an upgrade of his discharge.

4.  The applicant met entrance qualification standards, to include age with
a waiver.  There is no evidence that he was any less mature than other
Soldiers of the same age who successfully completed their military service
obligation.

5.  The applicant violated the Army's policy not to possess or use illegal
drugs. Therefore, he risked his military career and diminished the quality
of his service below that meriting an honorable discharge.

6.  The evidence available shows the applicant was repeatedly given the
opportunity to do the right thing and his misconduct escalated.  He was
separated after his chain of command determined that it was unlikely that
further rehabilitation efforts would be productive or that he would become
an effective Soldier.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 June 1967; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
13 June 1970.  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

__ym____  __rw____  __jkr___  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.



                                  Yolanda Maldonado
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040002351                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050224                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |19710614                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 10                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.7400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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