RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           22 September 2005
      DOCKET NUMBER:  AR20040009498


      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. James E. Anderholm            |     |Chairperson          |
|     |Mr. Bernard P. Ingold             |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 (UD),
characterized as under other than honorable conditions (UOTHC), be upgraded
to a fully honorable discharge.

2.  The applicant states, in effect, that more than 27 years ago, he was
separated based on a civil court conviction, due to being substance
dependent.  Since that time, he has worked hard to get his discharge
upgraded.  He has been a model citizen and given 27 years of excellent
service to the residents of the city of Boston.  He has been recognized and
granted numerous awards for his work.  He received a bachelor's degree from
the University of Massachusetts and he is currently enrolled in the Masters
Program of Public Policy and expects to graduate in 2006.

3.  The applicant provides a letter, dated 6 October 2004, that was written
by the Mayor of Boston and a copy of his DD Form 214 (Report of Separation
from Active Duty).

4.  The Mayor states, in effect, that he met the applicant 10 years ago.
He is a loving husband and father and a successful community activist for
gang violence prevention programs.  He has been drug free for the past 17
years and he has committed himself and his work to help individuals with
addictions and those affected by gang violence.  He has been a drug
counselor and the director of F.I.R.S.T, Inc., a residential drug treatment
center.  In 1989, he founded Gang Peace and changed the lives of over 1
million inner city youth though workshops, mediations, case management
services, education and entrepreneurial opportunities.  He has made and
continues to make a very significant impact on the lives of the youth of
Boston.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 10 January 1977.  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 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.  On 2 July 1974, the applicant enlisted in the United States Army
Reserve Delayed Entry Program (DEP) for 6 years.  On 19 August 1974, he was
discharged from the DEP and he enlisted in the Regular Army for 3 years.
He completed the training requirements and he was awarded military
occupational specialty (MOS) 71B (Clerk Typist).  On 31 December 1974, he
was assigned to Fort Bragg, North Carolina with duties in his MOS.

4.  Army Discharge Review Board (ADRB) proceedings show that, on 6 May
1975, nonjudicial punishment (NJP) was imposed against the applicant under
the provisions of Article 15, Uniform Code of Military Justice for
disobeying a lawful order from a noncommissioned officer.  On 4 September
1975, a second NJP was imposed against him for possession of marijuana and
possession of a fixed blade knife that exceeded 2 1/2 inches in length on
20 August 1975.  The available records no longer contains the NJP
proceedings.

5.  The applicant's records also do not contain all of the facts and
circumstances surrounding the discharge process.  However, the available
evidence indicates that, on 15 September 1976, while assigned to Fort
Bragg, he pled guilty in a civilian court and was convicted for the sale
and delivery of lysergic acid diethylamide (LSD).  At age 19, he was
sentenced to serve 3 years in the North Carolina State Department of
Corrections as a committed youth offender.

6.  The applicant's records also contain a properly constituted DD Form 214
that was prepared at the time of separation.  The DD Form 214 shows that on

10 January 1977, he was discharged in absentia under the provisions of Army
Regulation 635-206, for conviction by a civil court.  He was issued an UD .
 He had completed 1 year, 11 months and 29 days of active military service
and he had 143 days of lost time due to being in civilian confinement.

7.  On 6 April 1983, the ADRB denied the applicant’s request for an upgrade
of his discharge.

8.  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, an UD was considered appropriate.
DISCUSSION AND CONCLUSIONS:

1.  In a civilian court, the applicant was convicted of the sale and
distribution of LSD.  A conviction by civil authorities obligated military
authorities to consider the applicant for discharge.  Retention is normally
only considered in exceptionally meritorious cases when clearly in the best
interests of the Army.

2.  There is no indication of procedural errors that would have jeopardized
the applicant's rights.  Therefore, the type of discharge directed and the
reason for discharge was appropriate considering the facts of the case.

3.  The applicant is to be commended for his achievements.  However, the
sale and distribution of drugs is a serious offense and post service
accomplishments alone are not sufficient to establish a basis for the
upgrade of a discharge.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 January 1977; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
9 January 1980.  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

__jea___  __bpi___  __mjf____  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.



                                  James E. Anderholm
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040009498                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050922                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |19770110                                |
|DISCHARGE AUTHORITY     |AR635-206                               |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6100                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]