RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        9 June 2005
      DOCKET NUMBER:  AR20040007961


      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. Betty A. Snow                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Lester Echols                 |     |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.

2.  The applicant states, in effect, that the overall character of his
service was honorable and that his ratings were excellent prior to his
being court-martialed.  He further states that under current standards, the
offenses he committed would  result in less severe punishment.  The
applicant further states he regrets his use of drugs.

3.  The applicant provides six character references in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that  occurred on 17 June 1969.  The application submitted in this case is
dated
20 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’s record shows he was inducted into the Army Reserve and
entered active duty on 21 June 1967, with a moral waiver.

4.  On 27 June 1967, the applicant was honorably discharged for the purpose
of enlisting in the Regular Army (RA).

5.  On 28 June 1967, the applicant enlisted in the RA.  The record shows he
was trained in, awarded and served in military occupational specialty (MOS)
31M20 (Radio Relay and Carrier Operator), and the highest rank he attained
while on active duty was private/E-2 (PV2).
6.  The applicant’s record documents no acts of valor, significant
achievement or service warranting special recognition.  It does include a
disciplinary history that includes two periods of confinement and two
convictions by special court-martial (SPCM).

7.  On 17 September 1968, while assigned to Camp Casey, Korea, a SPCM
convicted the applicant of violating Article 134 of the Uniform Code of
Military Justice (UCMJ) by possessing 24.93 grams more or less of
marijuana.  The resultant sentence included confinement with hard labor for
two months and forfeiture of $41.00 per month for four months.

8.  On 4 March 1969, while assigned to Camp Casey, Korea, a SPCM convicted
the applicant of violating Article 134 and Article 92 of the UCMJ by
possessing 4.42 grams of more or less of marijuana and 9 tablets of
Itobarbitol, a barbiturate.
The resultant sentence included confinement with hard labor for six months,
forfeiture of $45.00 per month for six months and reduction in grade to
private/E-1 (PV1).

9.  On 8 May 1969, the applicant’s unit commander advised the applicant
that he intended to recommend his separation from the Army for unfitness.
The unit commander also advised the applicant of his rights.

10.  On 9 May 1969, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation action, its effects
and of the rights available to him.  Subsequent to this counseling, the
applicant waived his right to have his case considered by a board of
officers, waived his right to personal appearance before a board of
officers and he elected not to submit a statement in his own behalf.

11.  On 8 May 1969, the applicant’s commander recommended the applicant be
separated for unfitness because of repeated incidents of possession of
marijuana and one incident of possession of Itobarbitol, a barbiturate.
The applicant’s commander also indicated that the applicant had been
convicted by SPCM on two separate occasions.  The unit commander further
indicated that during the period of 3 February 1968 to 8 May 1969, the
applicant’s performance of duty was unsatisfactory.  The unit commander
also requested that further counseling and rehabilitation requirements be
waived because the applicant’s continued duty would create serious
disciplinary problems and be a hazard to the military mission of the unit.
12.  On 29 May 1969, the separation authority directed the applicant be
separated under the provisions of Army Regulation 635-212, by reason of
unfitness, and that he receive an UD.  On 17 June 1969, the applicant was
discharged accordingly.

13.  The DD Form 214 issued to the applicant on the date of his discharge,
17 June 1969, confirms he was separated under the provisions of Army
Regulation 635-212, by reason of unfitness, and that he received an UD.
The separation document further shows that he completed a total of 1 year,
10 months and 1 day of creditable active military service and that he
accrued
55 days of lost time.

14.  On 5 June 1973, the Army Discharge Review Board (ADRB), after a
thorough review of the applicant’s record, determined his discharge was
proper and equitable, and it voted to deny the applicant’s request for an
upgrade of his discharge.

15.  The applicant provided six character references from supervisors and
co-workers.  These individuals all attest to his excellent character and
job performance.

16.  Army Regulation 635-212, in effect at the time, set forth the basic
authority, established the policy, and prescribed the procedures for
separating members for unfitness.  An UD was normally considered
appropriate for members separating under these provisions.

17.  Title 10, U.S. Code, section 1552(b), provides 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 statue 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 Army Board for Correction of Military Records
(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.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the overall character of his service
was honorable, that his discharge was too harsh, that his post service
conduct has been excellent, and the supporting documents he provided were
carefully considered.  However, they provide an insufficient evidentiary
basis to support granting the requested relief.

2.  The evidence of record confirms his unit commander notified the
applicant of the contemplated separation action and that he consulted legal
counsel.  It further shows that after being advised of the basis for the
contemplated separation action and its possible effects, he voluntarily
elected to waive his right to have his case considered by a board of
officers and he elected not to submit a rebuttal statement in his own
behalf.

3.  The record shows the applicant’s separation processing was accomplished
in accordance with the applicable regulation.  All requirements of law and
regulation were met and the rights of the applicant were fully protected
throughout the separation process.

4.  The applicant’s excellent post service conduct, as confirmed in the
supporting character references he provided, is admirable.  However, this
factor alone is not sufficiently mitigating to warrant an upgrade of his
discharge at this late date.

5.  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.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the Army Discharge Review Board
(ADRB) on 5 June 1973.  As a result, the time for him to file a request for
correction of any error or injustice to the Board expired on 4 June 1976.
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

___MHM_  ___LE __  ___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                 |AR20040007961                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005/06/09                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR 635-212. . . . .                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          | DENY                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.0200.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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