RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           31 March 2005
      DOCKET NUMBER:  AR20040004172


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Ronald J. Weaver              |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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, that his undesirable discharge (UD)
be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that his addiction to drugs began in
the Republic of Vietnam (RVN).  He claims it resulted from the war
conditions and the constant pressure he was under.  He states that while
serving in the RVN, he was caught with drugs, but no charges were brought
due to the illegal search that was made.  He further states that no follow-
up was done to see if he needed treatment.  The applicant also states that
when he was caught with drugs at
Fort Hood, Texas, he was again never counseled to see if he needed
treatment for his drug problem.  He states that he was told that a court-
martial would probably result in jail time.  However, if he agreed to
accept an UD, he would not face a court-martial and would be released from
active duty and allowed to go home.  He claims he was never counseled about
his drug use and everyone just wanted him out of the Army so there would be
one less problem to deal with.

3.  The applicant provides no documentary evidence in support of his claim.


CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 3 April 1973.  The application submitted in this case is
dated 6 July 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 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 the Regular Army and
entered active duty on 10 April 1970.  He was trained in, awarded and
served in military occupational specialty (MOS) 11B (Infantryman).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows that
he was promoted to specialist four (SP4) on 11 April 1971 and that this is
the highest rank he attained while serving on active duty.  The record also
shows that he was reduced to private first class (PFC) on 29 April 1972 and
to
private/E-1 (PV1) on 13 March 1973.

5.  The applicant’s DA Form 20 also shows that he served in the Republic of
Vietnam (RVN) from 2 October 1970 through 22 February 1972.  The record
also shows that he accrued 61 days of time lost due to being absent without
leave (AWOL) on five separate occasions between 30 March 1972 and 6 January
1973.

6.  The applicant’s disciplinary history includes his acceptance of
nonjudicial punishment (NJP) under the provisions of Article 15 of the
Uniform Code of Military Justice (UCMJ) on the following two dates for the
offense(s) indicated:  29 April 1972, for being AWOL from 30 March through
17 April 1972 and
25 September 1972, for failing to go to his appointed place of duty at the
prescribed time.

7.  On 15 November 1972, a Charge Sheet (DD Form 458) was prepared
preferring two court-martial charges against the applicant for violating
Article 134 and Article 86 of the UCMJ.  Charge I was for violating Article
134, by wrongfully transferring a habit forming drug (heroin).  Charge II
was for violating Article 86, by being AWOL from on or about 30 October
through on or about 13 November 1972.

8.  On 22 February 1973, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
effects of an UD and of the rights available to him.  Subsequent to
receiving this legal counsel, the applicant voluntarily requested discharge
for the good of the service, in lieu of trial by court-martial.
9.  In his request for discharge, the applicant acknowledged he understood
that if his discharge request was approved, he could be deprived of many or
all Army benefits, that he could be ineligible for many or all benefits
administered by the Department of Veterans Affairs (VA), and that he could
be deprived of his rights and benefits as a veteran under both Federal and
State law.  He further indicated that he understood that he could encounter
substantial prejudice in civilian life by reason of an UD.

10.  On 13 March 1973, the separation authority approved the applicant’s
request for discharge and directed that he receive an UD.  On 3 April 1973,
the applicant was discharged accordingly.

11.  The separation document (DD Form 214) the applicant was issued on the
date of his discharge, 3 April 1973, confirms he completed a total of 2
years,
9 months and 22 days of creditable active military service, and that he had
accrued 61 days of time lost due to AWOL.  The separation document also
shows that during his active duty tenure, he earned the Vietnam Service
Medal with 2 bronze service stars, RVN Campaign Medal and Sharpshooter
Qualification Badge with Rifle Bar.

12.  On 14 February 1985, the Army Discharge Review Board (ADRB) determined
that the applicant’s discharge was proper and equitable and it voted to
deny the applicant’s request for an upgrade of his discharge.

13.  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 an UD.
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 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 ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the Board 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 his drug addiction contributed to the
misconduct that resulted in his discharge and that he was never properly
counseled for this addiction was carefully considered.  However, this
factor is not sufficiently mitigating to warrant an upgrade of his
discharge at this late date.

2.  The evidence of record confirms that the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, the applicant voluntarily
requested discharge from the Army in lieu of trial by court-martial.  All
requirements of law and regulation were met, the rights of the applicant
were fully protected throughout the separation process and his discharge
accurately reflects his overall record of short and undistinguished
service.

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

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 14 February 1985.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 13 February 1988.  However, he 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

___WDP_  ___RJW_  ___LGH _  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.




            ____William D. Powers_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040004172                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/03/31                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1973/04/03                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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