RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 July 2005
      DOCKET NUMBER:  AR20040008823


      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, in effect, that his general discharge be
upgraded.

2.  The applicant states that he had only just returned from Vietnam and
was still on drugs, which made the discharge unjust at the time.

3.  The applicant provides no substantiating documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 27 March 1973.  The application submitted in this case is dated
12 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 7 December 1970.  He
completed training as a communications center specialist and served in
Vietnam from 28 June 1971 to 15 June 1972 at Bien Hoa, near Saigon.  While
there he received nonjudicial punishments (NJPs) under the provisions of
Article 15, Uniform Code of Military Justice; once for bringing beer into
the communications center when he reported for duty, absence from his
appointed place of duty and
dereliction of duty by failing to transmit a FLASH precedence message;
again for absence without leave (AWOL) for 10 days; and a third time for
disrespect and refusing a direct order from a staff sergeant.

4.  He returned to the United States and was stationed at Fort Huachuca,
Arizona, but was AWOL from 31 August to 27 November 1972.  He was convicted
by Special Court-Martial (SPCM) of that offense and assigned to the
retraining brigade at Fort Riley, Kansas where he was processed for
elimination due to frequent incidents of a discreditable nature with
military or civilian authorities.

5.  On 14 March 1973 the commanding officer recommended the applicant be
eliminated for frequent incidents as evidenced by four NJPs, the SPCM
conviction and 23 other incidents that had not been adjudicated.

6.  The applicant consulted with counsel and waived his rights to be
represented by counsel, to have his case considered by a board of officers
and to make a statement in his own behalf.  He acknowledged that he
understood that a less than honorable discharge would deprive him of
veteran benefits under Federal and state laws and that he could expect to
encounter substantial prejudice in the civilian community.

7.  At a mental status evaluation the applicant's behavior was observed to
be normal.  He was fully alert and oriented and displayed an unremarkable
mood.  His thinking was clear, his thought content normal and his memory
good. The examiner found no significant mental illness.  The applicant was
considered mentally responsible.  He was found to be able to distinguish
right from wrong and to adhere to the right.

8.  The separation authority considered the case and directed that the
applicant be separated with an undesirable discharge.

9.  On 27 March 1973 the applicant was separated under the provisions of
Army Regulation 635-200, chapter 13.  He had 1 year 11 months and 25 Days
of creditable service and 143 days lost time.  His authorized awards
included the National Defense Service Medal, the Vietnam Service Medal with
two bronze service stars and the Vietnam Campaign Medal.

10.  On 12 April 1978 the Army Discharge Review Board (ADRB) upgraded the
applicant's discharge to general under the provisions of the Department of
Defense (DOD) Discharge Review Program (Special) (SDRP).  Subsequently, the
ADRB declined to affirm the SDRP upgrade under historically consistent
uniform standards and so notified the applicant in a 20 June 1978 letter.
He was scheduled to appear at a personal appearance hearing in 1982 but
failed to respond to the scheduling letter and the case was closed.

11.  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 13-5a provided for the separation
of individuals whose record evidenced frequent incidents of a discreditable
nature with civil or military authorities and other
categories of misconduct or aberrant behavior.  When separation for
unfitness was warranted an undesirable discharge and characterization of
service as having been served under other than honorable conditions was
normally considered appropriate.
 
DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

3.  The applicant provided no rationale for his implied argument that drug
abuse somehow mitigated his other misconduct.

4.  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.

5  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 27 March 1973; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
26 March 1976.  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                 |AR20040008823                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |                                        |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.000                                 |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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