RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           19 April 2005
      DOCKET NUMBER:  AR20040005371


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. Larry C. Bergquist            |     |Member               |
|     |Mr. Larry J. Olson                |     |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 [either] that her discharge be upgraded or that
her court-martial conviction be overturned.

2.  The applicant states that she was not involved in writing
prescriptions.  She believes she was wrongly accused.  They caught the
person responsible in the act.  She, being that person's roommate, was also
accused.

3.  The applicant provides no supporting evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 10 January 1974.  The application submitted in this case is
dated 3 August 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 enlisted in the Regular Army on 24 October 1972.  She
completed basic training and advanced individual training and was awarded
military occupational specialty 91A (Medical Corpsman).

4.  On 11 October 1973, the applicant was convicted, contrary to her plea,
by a special court-martial of, in conjunction with Private First Class
D___, possessing Quaalude, a dangerous drug.  She was also convicted, in
accordance with her plea, of being AWOL from on or about 19 September 1973
until on or about       25 September 1973.  She had also been tried, in
conjunction with Private First Class D___, for forging a prescription for
Quaalude; however, in accordance with her plea, she had been found not
guilty of that charge.  Her approved sentence was a forfeiture of $100.00
pay for six months and a reduction to pay grade E-1.

5.  On 19 October 1973, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for willfully
disobeying a lawful command from her superior commissioned officer to move
back on post.

6.  On 30 October 1973, the applicant accepted NJP under Article 15, UCMJ
for breaking restriction and for willfully disobeying another lawful
command from her superior commissioned officer to move into the barracks
from her illegal residence off post.

7.  On 14 November 1973, the applicant accepted NJP under Article 15, UCMJ
for breaking restriction three times and for disobeying a lawful order from
her superior noncommissioned officer to perform extra duty.

8.  On 7 November 1973, the applicant completed a separation physical
examination and was found qualified for separation.

9.  On 9 November 1973, a psychiatric evaluation found the applicant to
have no psychiatric disease or defect necessitating handling through
medical channels, found her to know right from wrong and able to adhere to
the right, and to have the capacity to understand and cooperate in
administrative proceedings.  The applicant had stated during the evaluation
that she wanted out of the Army and was willing to do anything that she had
to in order to get out and she stated unequivocally that she would not obey
any order given her to move onto the base and into the barracks.  She was
diagnosed with a passive-aggressive personality disorder.

10.  The applicant's commander initiated action to separate her under the
provisions of Army Regulation 635-200, paragraph 13-5a, for unfitness.  The
commander cited the applicant’s frequent incidents of a discreditable
nature.

11.  On 14 November 1973, the applicant was advised by counsel of the basis
for the contemplated action, waived consideration of her case by a board of
officers, waived personal appearance before such a board, waived
representation by counsel, and submitted no statement in her own behalf.

12.  The applicant's DA Form 20 (Enlisted Qualification Record) shows she
was AWOL again from 6 December 1973 through 9 January 1974 for which she
received Article 15 punishment on 10 January 1974.

13.  On 10 January 1974, the applicant was discharged, in pay grade E-1,
with an undesirable discharge, under the provisions of Army Regulation 635-
200, chapter 13 for unfitness.  She had completed 1 year, 1 month, and 12
days of creditable active service.  Her DD Form 214 shows she had 35 days
of lost time.

14.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 13, then in effect, contained
the policy and outlined the procedures for separating individuals for
unfitness when they were involved in frequent incidents of a discreditable
nature with civil or military authorities and it was established that
further efforts at rehabilitation were unlikely to succeed or they are not
amenable to rehabilitation measures.

15.  Army Regulation 635-200, in pertinent part, states that an honorable
discharge is a separation with honor.  The honorable characterization is
appropriate when the quality of the Soldier’s service generally has met the
standards of acceptable conduct and performance of duty for Army personnel,
or is otherwise so meritorious that any other characterization would be
clearly inappropriate.  A general discharge is a separation from the Army
under honorable conditions.  It is issued to a Soldier whose military
record is satisfactory but not sufficiently meritorious to warrant an
honorable discharge.

16.  Title 10, U. S. Code, section 1552(f) states that, with respect to
records of courts-martial tried or reviewed under the Uniform Code of
Military Justice, the Board's action may extend only to action on the
sentence of a court-martial for purposes of clemency.

DISCUSSION AND CONCLUSIONS:

1.  It cannot be clearly determined if the applicant is requesting that her
discharge be upgraded or that her court-martial conviction be overturned.

2.  In regards to her court-martial conviction, the applicant may have been
accused of forging a prescription for Quaalude but the court-martial found
her not guilty of that charge.  She was found guilty of two other charges,
one of which she had pleaded guilty to.

3.  In regards to the applicant's discharge, her administrative separation
was accomplished in compliance with applicable regulations with no
indication of procedural errors which would tend to jeopardize her rights.
She was discharged for unfitness due to frequent acts of a discreditable
nature.  These acts included one period of AWOL (but did not include a
second period of AWOL after her discharge was approved), one court-martial
conviction for the AWOL plus drug possession, and at least three instances
of failing to obey an order to move into the barracks.  Her record of
service was insufficiently meritorious to warrant an upgrade.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 January 1974; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on           9 January 1977.  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

__rjw___  __lcb___  __ljo___  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.




            __Raymond J. Wagner___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040005371                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050419                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1974/01/10                              |
|DISCHARGE AUTHORITY     |AR 635-200, ch 13. . . . .              |
|DISCHARGE REASON        |A51.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.00                                  |
|2.                      |105.00                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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