RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          16 August 2005
      DOCKET NUMBER:  AR20040008684


      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. John T. Meixell               |     |Member               |
|     |Mr. James B. Gunlicks             |     |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 or to a fully
honorable discharge.

2.  The applicant states, in effect, that he became involved with the wrong
crowd and began using drugs which affected his ability to make rational
decisions.

3.  The applicant provides his application and the following documents in
support of his request through his Congressional Representative:

      a.  A Privacy Act Statement.


      b.  Medical documents, dated between May and November 1973.


      c.  A letter written by a counselor at Diagnostic Unit, Colorado State
Reformatory, dated 26 May 1974.


      d.  Two progress reports that were provided by a case manager and
a case aide worker at the Delta Honor Unit of Colorado State Reformatory,
both dated 3 June 1974.

4.  The applicant's Congressional Representative states that the applicant
acknowledges he made poor decisions which resulted in the issuance of a UD
and that he has taken the necessary steps to better himself.  Therefore,
the applicant desires that his UD be upgraded to reflect the individual
that he has become.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 22 November 1974.  The application submitted in this case is
dated
30 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 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.  The documents the applicant provided were available and considered at
the time of separation.

4.  On 20 December 1971, the applicant enlisted in the Regular Army for a
period of 2 years.  He completed the training requirements and he was
awarded military occupational specialty (MOS) 95B (Military Policeman).  On
21 May 1972, he was assigned to Fort Carson, Colorado with duties in his
MOS.

5.  On 28 June 1972, nonjudicial punishment (NJP) under the provisions of
Article 15, Uniform Code of Military Justice (UCMJ), was imposed against
him for being AWOL from his unit from 20-22 June 1972.  His punishment
included reduction from pay grade E-2 to pay grade E-1 (suspended until 4
October 1972), and 14 days of extra duty and restriction.

6.  The applicant left his unit in an AWOL status from 9 October to 26
December 1972, until he was apprehended by civil authorities, charged with
theft and confined in the El Paso County Jail, Colorado.  He remained in
civil confinement until he was released to the Correctional Custody
Facility, Fort Carson, Colorado on 4 April 1973.

7.  On 18 April 1973, the applicant was convicted by a special court-
martial of intent to defraud by wrongfully and unlawfully attempting to
procure currency in the amount of $46.00 at the Main Post Exchange (cashing
a check) on
22 August 1972, and of being AWOL from 9 October to 26 December 1972.  His
sentence included a forfeiture of $200.00 pay per month for 4 months
(suspended until 29 August 1973) and confinement at hard labor for 4
months.

8.  On 18 May 1973, in the District Court, Fourth Judicial District, County
of El Paso, the applicant pled guilty to the charge of theft, receiving
stolen merchandise (misdemeanor).  He was sentenced to serve a total of 107
days in civil confinement.  However, the court took into consideration the
time he had already served in the El Paso County Jail and the sentence was
suspended.

9.  On 5 June 1973, the applicant was assigned to the United States Army
Retraining Brigade (USARB), Fort Riley, Kansas in a trainee status.  He
completed the training requirements, and he was awarded MOS 63B (Wheel
Vehicle Mechanic).

10.  At the applicant's request, he was further assigned to Fort Jackson,
South Carolina for completion of MOS 76A (Supply Clerk).  He was awarded
MOS 76A and assigned to Fort Carson with duties in MOS 76A on 22 November
1974.

11.  On 25 January 1974, in the District Court of El Paso County, the
applicant pled guilty to the charge of possession of a narcotic drug.  He
was sentenced to serve an indeterminate term not to exceed 5 years.
Probation was denied.

12.  On 25 January 1974, while in civilian confinement, the applicant was
notified his unit commander intended to recommend that he be separated
under the provisions of Army Regulation 635-206, due to a civil conviction
with a UD.  The applicant was advised of his rights.

13.  On 1 March 1974, the applicant requested that his case be considered
by a board of officers.  He also acknowledged that he had been advised of
the basis for the contemplated action and the ramifications of receiving a
UD.

14.  On 27 August 1974, the applicant was notified that a board of officers
would meet on 10 January 1974 to determine his suitability for retention or
discharge from the service under the provisions of Army Regulation 635-206.

15.  On 10 September 1974, the applicant appeared before an administrative
board with counsel.  During the board proceedings, the applicant stated
that he was currently serving a sentence for possession of heroin; that he
started using heroin about 5 months after he enlisted in the military and
he had been in confinement since November 1973.  He stated that prior to
being arrested for drugs, he had gone to civilian doctors for help, but his
appointments conflicted with his work schedule and he had to invent excuses
for being late or leaving early.  He also stated that he had previously
pled guilty to a misdemeanor when he was arrested for pawning a stolen
camera that he received in lieu of cash from an individual in a pool game.
He requested an opportunity to complete his military service obligation.

16.  On the same date, the board recommended that the applicant be
separated with a UD and that he retain all veterans' medical benefits.

17.  On 24 October 1974, the intermediate commander concurred with the
findings and recommendations of the board.

18.  On 14 November 1974, competent authority approved the recommendation
and directed that the applicant be reduced to pay grade E-1 and separated,
due to a conviction by a civil court while on active duty with a UD.

19.  On 22 November 1972, the applicant was discharged under the provisions
of Army Regulation 635-206, due to conviction by a civil court while on
active duty.  He had completed 1 year, 8 months and 10 days of active
military service.  He also had 577 days lost time (283 days lost subsequent
to his normal expiration term of service date) due to being AWOL and in
confinement.

20.  Army Regulation 635-206, then in effect, stated, in pertinent part,
that an individual will be considered for discharge when an individual is
initially convicted by civil authorities of an offense which involves moral
turpitude, regardless of the sentence received or maximum punishment
permissible under any code.  At the time, a UD was considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was convicted of possession of a narcotic drug and
sentenced to serve an indeterminate term not to exceed 5 years in civil
confinement.  His conviction by civil authorities obligated military
authorities to consider him for discharge.  In such cases, retention is
normally only considered in exceptionally meritorious cases when clearly in
the best interests of the Army.

2.  The applicant’s discharge process was administratively correct and it
was in conformance with applicable regulations, then in effect, with no
indication of procedural errors which would have jeopardized his rights.

3.  Both the characterization of service and the narrative reason for
separation are commensurate with the applicant’s overall record of military
service.

4.  The applicant was assigned to the USARB for rehabilitation purposes,
and granted an MOS of his choice and the opportunity to start fresh.  The
training was fruitless and the opportunity was squandered.

5.  The applicant's post service achievements are noted.  However, these
accomplishments do not overcome the fact that he violated the Army's drug
abuse policies and diminished the quality of his service below that
meriting an honorable discharge when he was convicted by a civil court of
having in his possession a narcotic drug while on active duty.

6.  The both letter and the progress reports that were provided by the
applicant were available and considered by the administrative separation
board during the discharge process.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 November 1974; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
21 November 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

__mhm___  __jtm___  __jbg___  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                 |AR20040008684                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050816                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19741122                                |
|DISCHARGE AUTHORITY     |AR 635-206                              |
|DISCHARGE REASON        |A61.00                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6100                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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