RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 July 2005
      DOCKET NUMBER:  AR20040008675


      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. W. W. Osborn, Jr.             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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 undesirable discharge be upgraded.

2.  The applicant states that he answered, "yes," when asked if he wanted
out of the Army.  He was told that an undesirable discharge would be
beneficial to both him and the Army.

3.  The applicant provides no substantiating documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 8 February 1977.  The application submitted in this case is
dated 9 October 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 and entered active duty on 25 February 1975 and
completed training as a combat engineer.  He progressed normally and was
advanced to pay grade E-3 on 13 August 1975.

4.  On 6 February 1976, the applicant pled guilty at a general court-
martial to charges and specifications of selling marijuana and PCP to a
fellow Soldier.  He was sentenced to confinement for 1 year and total
forfeitures.  The convening authority approved the findings sentence as
adjudged.  The Army Clemency and Parole denied his request for clemency and
the applicant was confined to serve his sentence.

5.  On 8 February 1977 the applicant was separated under other than
honorable conditions with an Undesirable Discharge Certificate under the
provisions of Army Regulations 635-200, paragraph 13-5a.

6.  Army Regulation 635-200 sets forth the policy and prescribes the
procedures for administrative separation of enlisted personnel.  Chapter
13, in effect at that time, applied to separation for unfitness and
unsuitability.  At that time, paragraph 13-5(a) provided for separation
several categories of misconduct, including illegal drug involvement.  When
separation for unfitness was warranted a undesirable discharge with
characterization of service as having been served under other than
honorable conditions was normally considered appropriate.

7.  There is no indication that the applicant ever applied to the Army
Discharge Review Board.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the
discharge proceedings were conducted in accordance with law and regulations
applicable at the time. The character of the discharge is commensurate with
his overall record.

2.  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

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 February 1977; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 7 February 1980.  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

__LDS__   _PHM ___  __LGH__  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.




                                  __Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050726                                |
|TYPE OF DISCHARGE       |19770208                                |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |AR635-200 . . . . .                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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