RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          7 July 2005
      DOCKET NUMBER:  AR20040006387


      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          |
|     |Mr. Eric N. Anderson              |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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 a general discharge under honorable conditions.

2.  The applicant states that he was 19 years old and immature.  He had a
drug problem and enlisted in the Army to get his life together and serve
his country.  Unfortunately, his drug problem got worse when he had to face
the prospect of going to Vietnam.  He states that he needed counseling and
therapy, but court-martial charges were preferred against him instead.  He
requests that the Army Board for Correction of Military Records (ABCMR)
show compassion.

3.  The applicant provides:

      a.  DD Form 214 (Armed Forces of the United States Report of Transfer
or Discharge).

      b.  Standard Form 539 (Clinical Record), dated 22 May 1972.

      c.  Separation processing documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 28 July 1972.  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 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 10 December 1971, at age 18, the applicant enlisted in the Regular
Army for a period of 2 years.  He completed basic training and on 2
February 1972, he was assigned to Fort Sam Houston, Texas for completion of
advanced individual training (AIT).  He failed to complete AIT and he was
not awarded a military occupational specialty.

4.  The SF Form 539 provided by the applicant shows he was hospitalized and
treated at Brooke General Hospital, Fort Sam Houston from 18-22 May 1972
for detoxification.  He was taken to the Brooke General Hospital Emergency
Room by military police who were preparing to transfer him to pretrial
confinement at Fort Hood.  He was apprehended by military police for
carrying a deadly weapon and attempted theft.  During the apprehension
process, he claimed he was having withdrawal symptoms and admitted to
having used heroin at the rate of one to two grams per day for the past 3
months.  At the time that he was apprehended, he had been assigned to Fort
Sam Houston for approximately 3 months and he had been in the Army for
approximately 5 months.  He contended that he had been off heroin for 1
year prior to enlisting in the military.  Prior to quitting, he had been
drug dependent for 5 years.  He also claimed occasional use of marihuana
and cocaine and that he desired to stop using drugs.  He also admitted that
he had been in prison several times as a civilian for drug-related charges
and that he contracted serum hepatitis about 5 years prior to enlisting and
he was hospitalized at the time that he was diagnosed.

5.  A Line of Duty Investigation determined the applicant suffered from
"drug dependence, heroin, severe.  Line of Duty:  No, due to own
misconduct."

6.  On 22 May 1972, prior to release to military police, an examination
revealed needle tracks in the applicant's left antecubital fossa (forearm).
 He had a slightly elevated blood pressure and he showed no signs of
withdrawal.  On 18 May 1972, at the time of admission, he exhibited some
signs of withdrawal and he was administered a dose of methadone.
Subsequent to this, he experienced no difficulties; he was easily
detoxified and he was cooperative on the hospital ward.

7.  On 26 May 1972, court-martial charges were preferred against the
applicant for attempted larceny of personal property of some value from a
Soldier; stealing one acoustic-guitar with case of a value of $100.00, an
electric razor of a value of $30.00, and a radio of a value of $12.00, the
property of another Soldier; and violating a lawful general regulation by
having in his possession a switchblade knife with a blade in excess of
three inches in length on 16 May 1972.  He was also charged with unlawfully
carrying a concealed weapons, a large pin shaped object with a pointed
shaft in excess of three inches on 17 May 1972.

8.  On 2 June1972, 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.  The available record does not contain a
statement submitted by the applicant in his own behalf.
9.  On 7 June 1972, the commander recommended approval of the applicant's
request for discharge under the provisions of chapter 10, Army Regulation
635-200, for the good of the service with a UD.  The commander stated that
the applicant's performance of duty, conduct, and efficiency had been
unsatisfactory. He displayed traits detrimental to the good of the service.
 The commander believed the applicant's retention in the service was not
feasible.

10.  On 7 June 1972, the separation authority approved the recommendation
and directed that the applicant be separated under the provisions of
chapter 10, Army Regulation 635-200 with a UD.  On the same date, the
applicant was placed in a hold status pending completion of an
investigation.

11.  A Criminal Investigation Division (CID) Report of Investigation shows
that, on 7 June 1972, while in the Fort Sam Houston Post Stockade, the
applicant and two accomplices (Soldiers) forced a fourth Soldier to perform
oral sodomy on them by threatening to cut his throat.  The applicant forced
the fourth Soldier to remove his trousers, at which time the applicant
engaged in sodomy while his two accomplices acted as outlooks during the
act.

12.  On 21 June 1972, additional court-martial charges were preferred
against the applicant for committing sodomy with a Soldier by force and
without the consent of the Soldier and for wrongfully communicating a
threat to injure the Soldier by cutting his throat.

13.  An Article 32b investigation into the facts and circumstances
concerning the above charges took place on 28 June 1972.  The investigating
officer recommended that the charge of sodomy, communicating a threat, and
carrying a concealed weapon be dropped.

14.  On 28 July 1972, the applicant was separated with a UD under the
provisions of chapter 10, Army Regulation 635-200.  He had completed 5
months and 18 days of creditable active military service and he had 61 days
of lost time, due to being in military confinement.

15.  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.

16.  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.  At the time of the applicant's
separation, a UD was appropriate.

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.  The type of discharge directed
and the reasons for discharge were appropriate considering the facts of the
case.

2.  The applicant’s contention that he was young and immature has been
noted.  However, he met entrance qualification standards, to include age.
Further, there is no evidence that he was any less mature than other
Soldiers of the same age who successfully completed their military service
obligation.

3.  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 a honorable discharge.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 July 1972; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
27 July 1975.  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___  __ena___  __cak___  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                 |AR20040006387                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050707                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |19720728                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 10                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.7000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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