RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          26 May2005
      DOCKET NUMBER:  AR20040004619


      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:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Ms. Seema E. Salter               |     |Member               |
|     |Ms. Susan A. Powers               |     |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 general discharge (GD) under honorable
conditions be upgraded to a fully honorable discharge.

2.  The applicant states, in effect, that he was 18 years of age and he had
never been away from home before joining the Army.  He was charged with
attempted possession of a narcotic drug because he had pills in his
possession he believed to be cocaine.  The pills were not cocaine, nor were
they an illegal substance, but he was coerced into taking a GD.  He states
he spent 30 days in the stockade where he was brutalized, traumatized, and
sexually assaulted.  He was afraid of spending 2 or 3 years in prison so he
took the discharge.  He suffered from depression for many years, and it was
not until recently that he received treatment.  He also states that he
requested an upgrade of his discharge within the appropriate time limit,
but he was denied.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 12 September 1973.  The application submitted in this case is
dated 12 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 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 15 May 1972, the applicant’s legal guardian (his aunt) signed a
declaration of parental consent for him to enlist in the military.  On 24
May 1972, at age 17, he enlisted in the Regular Army for a period of 3
years, training in military occupational specialty (MOS) 91A (Medical
Corpsman) and assignment to Eighth Army, Korea.  He completed the training
requirements, was awarded MOS 91A, and was assigned to Korea on 5 October
1972 with duties in his MOS.

4.  On 31 March 1973, nonjudicial punishment was imposed against the
applicant under the provisions of Article 15, Uniform Code of Military
Justice (UCMJ) for having in his possession some amount of marijuana on 25
February 1973.  His punishment included a forfeiture of $171.00 pay per
month for 2 months (second month suspended for 6 months), and reduction
from pay grade E-2 to pay grade E-1.  On 16 May 1973, the suspension was
vacated due to unknown reasons.

5.  On 18 June 1973, the applicant was found to have in his possession
fifty capsules of a drug he purchased believing that it was cocaine.  The
applicant admitted that he purchased the capsules on 17 June 1973.

6.  Upon completion of an Article 32 Investigation, the defense counsel
(with consent of the applicant) stipulated that the applicant would plead
guilty to the charge of possession of a controlled substance (cocaine), if
the Government agreed to send the case to a special court-martial.  The
Staff Judge Advocate (SJA) believed the offer was unacceptable.

7.  The laboratory analysis of the substance had not been completed at the
time of the Article 32 Investigation.  Upon completion of the analysis, it
was determined the capsules in the applicant's possession were not a
controlled substance.  The charge was changed to "attempt to violate a
lawful general regulation by having in his possession fifty capsules, more
or less, of a substance he believed to be cocaine."  The SJA, through the
trial counsel, notified the defense counsel that the Government would send
the charge to a special court-martial if the applicant pled guilty to the
new charge.  The offer was made because the Government felt a speedy
disposition of the case was necessary for the following reasons:  The SJA
intended to use the testimony from the Article 32 Investigation against the
Soldier who allegedly sold the substance to the applicant.  The SJA also
believed the Government would save time and money in its efforts to prove
the case against the applicant.  The applicant declined the offer and the
case was referred to a special court-martial empowered to adjudge a bad
conduct discharge.  The applicant remained in pretrial confinement from 20
June to 21 July 1973.

8.  On 24 August 1973, 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.  The
applicant stipulated that the request was submitted under the condition
that he receive a GD.  He also authenticated a statement in which he
acknowledged he had not been subject to coercion with respect to his
request and that he had been advised of the implications of receiving a
less than fully honorable discharge.  The applicant indicated in a
statement written in his own behalf that he believed his actions were
normal, healthy, and perfectly rational.  He believed he would go to prison
if he remained in the Army and under no circumstances did he intend to stay
in the Army.

9.  On 30 August 1973, the company, battalion and brigade commanders
recommended approval of the applicant's request with a GD.  On the same
date, the separation authority approved the request and directed that the
applicant be separated with a GD.

10.  On 12 September 1973, the applicant was separated with a GD for the
good of the service under the provisions of chapter 10, Army Regulation 635-
200.  He had completed 1 year, 3 months, and 19 days of active military
service.

11.  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 limitations.  However, on 24 March
1976, this Board denied the applicant's request to correct his record to
show he was advanced from pay grade E-1 to pay grade E-2.

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.
While an honorable discharge or GD may be issued, a UOTHC discharge is
normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, 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.

2.  As part of the separation process, the applicant consulted with a legal
representative and requested a GD; he also acknowledged that he understood
the consequence of receiving a discharge that was other than fully
honorable.

3.  The applicant’s entire record of service was taken into consideration
and it was determined that both the reason for discharge and the
characterization of service were appropriate considering the facts
surrounding his case.

4.  The applicant was legally held in pretrial confinement from 20 June to
21 July 1973 awaiting the disposition of his case.  The available evidence
does not indicate that he was abused or maltreated when he was in
confinement.

5.  There is also no evidence that the applicant ever requested an upgrade
of his discharge.  However, in 1976, this Board denied the applicant's
request to correct his record to show he was advanced from pay grade E-1 to
pay grade E-2

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 September 1973; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
11 September 1976.  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

__mhm___  __ses___  __sap___  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.



                                  Melvin H. Meyer
            _____________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040004619                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050526                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19730912                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 10                      |
|DISCHARGE REASON        |A70.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.7000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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