RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 April 2005
      DOCKET NUMBER:  AR20040006881


      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. Michael J. Fowler             |     |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, in effect, that his undesirable discharge be
upgraded to an honorable discharge.

2.  The applicant states, in effect, he was told that his discharge would
be upgraded to honorable one year after his discharge.  He further states
that his separation proceedings were mishandled and misleading.

3.  The applicant provides no documentation in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 10 June 1975.  The application submitted in this case is dated
3 September 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 6 August 1973 and
successfully completed basic training and advanced individual training.  He
was awarded military occupational specialty 63B (Wheel Vehicle Mechanic).

4.  On 19 April 1974, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for wrongful
possession of a controlled substance (marijuana).

5.  Records show that the applicant was absent without leave (AWOL) for the
period 15 July 1974 through 8 October 1974.

6.  On 18 November 1974, the applicant accepted NJP under Article 15, UCMJ
for being AWOL for the period 18 October 1974 through 11 November 1974.

7.  A DD Form 458 (Charge Sheet), dated 2 May 1979, shows charges were
preferred against the applicant for being AWOL for the period 6 December
1974 through 12 January 1975.
8.  Records show that the applicant was AWOL for the period 17 January 1975
through 21 May 1975.

9.  On 29 May 1975, after consulting with counsel, the applicant submitted
a request for discharge for the good of the service under the provisions of
chapter 10 of Army Regulation 635-200 (Personnel Separations).  The
applicant indicated in his request that he understood he could be
discharged under other than honorable conditions and furnished an Under
Other Than Honorable Conditions Discharge; that he may be deprived of many
or all Army benefits; that he may be ineligible for many or all benefits
administered by the VA; and that he may be deprived of his rights and
benefits as a veteran under both Federal and State law.  He also
acknowledged that he may expect to encounter substantial prejudice in
civilian life because of an Under Other Than Honorable Conditions
Discharge.

10.  The applicant submitted a statement on his own behalf that stated, in
effect, that he tried to be a good Soldier, but his wife hated the fact
that his job in the service took away time he should been spending with his
family.  He continued that when he was stationed at Fort Bragg he was sent
to a room by one of two sergeants and that the two sergeants began to smoke
marijuana and he was charged along with the sergeants.  He concluded that a
bad discharge would make it difficult for him to obtain a job and would be
a hardship on his family.

11.  On 6 June 1975, the appropriate authority approved the applicant's
request for discharge for the good of the service under the provisions of
chapter 10 of Army Regulation 635-200.  On 10 June 1975, he was discharged
with an undesirable discharge and a characterization of service as under
other than honorable conditions after completing 1 year and 26 days of
active service with 273 lost days due to AWOL.

12.  On 29 September 1979, the Army Discharge Review Board (ADRB) reviewed
and denied the applicant's request for upgrade.  The ADRB determined that
the applicant's discharge was proper and equitable and that the discharge
was properly characterized as under other than honorable conditions.

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.
The request may be submitted at any time after charges have been preferred
and must include the individual's admission of guilt. At the time an
undesirable was normally considered appropriate.
14.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.

15.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently
meritorious to warrant an honorable discharge.  A characterization of under
honorable conditions may be issued only when the reason for the Soldier’s
separation specifically allows such characterization.

16.  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 ABCMR 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.

17.  The U.S. Army does not have, nor has it ever had, a policy to
automatically upgrade discharges.  Each case is decided on its own merits
when an applicant requests a change in discharge.  Changes may be warranted
if the Board determines that the characterization of the service or the
reason for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence in the applicant's service records and the
applicant has provided no evidence that supports his contention that his
separation processing was mishandled.  Records show that his counsel
properly advised him and that he fully understood the consequences of the
discharge that he requested.

2.  Evidence shows that the applicant was properly and equitably discharged
in accordance with the regulations in effect at the time.

3.  In the absence of evidence to the contrary, it is determined that all
requirements of law and regulations were met and the rights of the
applicant were fully protected throughout the separation process.

4.  The applicant's records show that he received two Article 15s and had
four instances of AWOL.  He had completed 1 year and 26 days of creditable
active service with a total of 273 lost days due to AWOL.  Based on these
facts, the applicant’s service clearly did not meet the standards of
acceptable conduct and performance of duty for Army personnel which are
required for issuance of an honorable or general discharge.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 29 September 1979, the date of the
ADRB action; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 28 September 1982.
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                 |AR20040006881                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |19 April 2005                           |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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