RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          21 July 2005
      DOCKET NUMBER:  AR20040009558


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Mr. Robert Osborn                 |     |Member               |
|     |Ms. Brenda Koch                   |     |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 to
honorable.

2.  The applicant states, in effect, that his undesirable discharge should
be upgraded for the following reasons:  (1) his drug use only involved a
small amount; (2) his drug use was always off duty and off base; (3) he was
never involved in selling or trafficking drugs; (4) an undesirable
discharge is no longer required today for the same conduct; (5) he was not
a rehabilitative failure, as he was not offered this opportunity; (6) his
record of being absent without leave (AWOL) indicates only minor or
isolated offenses; (7) his conduct and efficiency were excellent; (8) he
was promoted in a timely manner; (9) he never got a promotion that was
being processed; (9) he was threatened several times after he submitted a
report as required; his request for transfer was denied; (10) he fled for
his own safety; his request for a compassionate reassignment was denied;
(11) financial, marital, and family problems impaired his ability to serve;
(12) his record of nonjudicial punishments indicate only isolated or minor
offenses; (13) his ability to serve was impaired by his youth and
immaturity; (14) he was not properly counseled about his discharge; (15)
there were no criminal or civil charges filed against him; (16) counseling
requirements were not met; (17) there was no psychiatric evaluation
conducted as required by the regulation and Lipsman vs. Brown; (18) there
was no diagnosis of a personality order as required by the discharge
regulations that applied to my case; and (19) the punishment he received
was too severe compared with today's standards.

3.  The applicant provides a copy of page 2 and 3 of his DA Form 20
(Enlisted Qualification Record); a certificate of completion from a
computer learning center; two certificates of achievement; three statements
of support pertaining to his employment with the Waterfront Rescue Mission;
a copy of his DD Form 214 (Report of Transfer or Discharge); and a letter,
dated 17 February 2005, wherein he contends that he has medical problems
(spinal, heart and lung) and that he needs his discharge upgraded to obtain
Department of Veterans Affairs (DVA) benefits.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 14 August 1970.  The application submitted in this case is
dated 18 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.  The applicant was born on 3 December 1951.  He enlisted on 4 February
1969 for a period of 3 years.  He successfully completed basic combat
training and advanced individual training in military occupational
specialty 63B (wheel vehicle repairman).

4.  On 1 April 1969, nonjudicial punishment was imposed against the
applicant for failure to repair and behaving with disrespect.  His
punishment consisted of a forfeiture of pay and 8 days of correctional
custody.

5.  On 5 August 1969, nonjudicial punishment was imposed against the
applicant for being AWOL from 24 July 1969 to 4 August 1969.  His
punishment consisted of a forfeiture of pay.

6.  On 27 October 1969, nonjudicial punishment was imposed against the
applicant for being AWOL from 15 September 1969 to 10 October 1969.  His
punishment consisted of a reduction to E-2, a forfeiture of pay, and
restriction.

7.  On 21 April 1970, nonjudicial punishment was imposed against the
applicant for failing to obey two lawful orders.  His punishment consisted
of a reduction to E-2 (suspended), restriction, and extra duty.

8.  On 9 May 1970, the applicant was hospitalized for a drug overdose.

9.  The applicant went AWOL on 29 May 1970 and returned to military control
on 18 June 1970.  Charges were preferred against the applicant for the AWOL
period and for writing 21 bad checks.  Trial by special court-martial was
recommended.

10.  A Criminal Investigative Division Report of Investigation, dated 18
June 1970, disclosed that on 10 May 1970 the applicant was in possession of
8.6 grams of marijuana.

11.  On 7 July 1970, the applicant consulted with counsel and requested
discharge for the good of the service under the provisions of Army
Regulation 635-200, chapter 10.  He indicated in his request that he
understood he might be discharged under conditions other than honorable and
furnished an Undesirable Discharge Certificate; that he might be ineligible
for many or all benefits administered by the Veterans Administration; that
he would be deprived of many or all Army benefits; and that he might be
ineligible for many or all benefits as a veteran under both Federal and
State law.  He also acknowledged that he might expect to encounter
substantial prejudice in civilian life because of an undesirable discharge.
 He elected not to submit a statement on his own behalf.

12.  On 30 July 1970, the separation authority approved the applicant's
request for discharge and directed that he be furnished an undesirable
discharge.

13.  On 14 August 1970, the applicant underwent a separation physical and
was found qualified for separation.  He reported that "My health is in
perfect condition."

14.  Accordingly, the applicant was discharged with an undesirable
discharge on 14 August 1970 under the provisions of Army Regulation 635-
200, chapter 10, for the good of the service.  He had served 1 year, 5
months, and 16 days of total active service with 56 days of lost time due
to AWOL.  The applicant was released from the service on temporary records
and a Soldier’s affidavit.

15.  There is no evidence in the applicant's service personnel records
which shows that he requested a transfer or compassionate reassignment.

16.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge within its 15-year statute of
limitations.

17.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of that regulation provides,
in pertinent part, that
a member who has committed an offense or offenses for which the authorized
punishment includes a punitive discharge may at any time after the charges
have been preferred, submit a request for discharge for the good of the
service in lieu of trial by court-martial.  The regulation also states that
an individual who submits a request for discharge for the good of the
service will undergo a medical examination as prescribed in chapter 10,
Army Regulation 40-501.  The report of medical examination will accompany
the request for discharge.  At the time, an undesirable discharge was
normally considered appropriate.

18.  Army Regulation 635-200, currently in effect, sets forth the basic
authority for the separation of enlisted personnel.  Chapter 10 of the
regulation provides, in pertinent part, that a member who has committed an
offense or offenses for which the authorized punishment includes a punitive
discharge may submit a request for discharge in lieu of trial by court-
martial.  The request may be submitted at any time after court-martial
charges have been preferred.  A discharge under other than honorable
conditions (previously characterized as "undesirable") is normally
considered appropriate.

19.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality
of the member’s service generally has met the standards of acceptable
conduct and performance of duty for Army personnel (emphasis added), or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.

20.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant was involved in drug related incidents, there is
no evidence of record which shows that he was referred for drug
rehabilitation or treatment.  It is noted that he reported his health was
in "perfect condition" on
14 August 1970.

2.  There is no evidence of record that shows the applicant requested a
transfer or compassionate reassignment prior to his voluntary request for
discharge for the good of the service.

3.  Financial, marital, or family problems are not grounds for upgrading a
discharge.

4.  Age is not a sufficiently mitigating factor.  Although the applicant
was 17 years old when he enlisted, he successfully completed basic combat
training and advanced individual training.

5.  The evidence of record does not support the applicant's contention that
he was not properly counseled about his discharge.  Evidence of record
shows the applicant consulted with counsel on 7 July 1970 prior to his
request for discharge.

6.  Although the applicant contends that there was no psychiatric
evaluation conducted, the governing regulation does not require that a
psychiatric

evaluation be conducted, only a medical examination.  Records show that a
report of medical examination was submitted in the applicant's discharge
packet.
7.  The evidence of record does not support the applicant's contention that
under current standards he would not have received the type of discharge he
did.  The current governing regulation states that an individual discharged
in lieu of trial by court-martial would normally be furnished a discharge
under other than honorable conditions.

8.  A discharge is not upgraded for the sole purpose of obtaining DVA
benefits.

9.  The applicant's record of service included drug related offenses, four
nonjudicial punishments and 56 days of lost time.  As a result, his record
of service was not satisfactory and did not meet the standards of
acceptable conduct and performance of duty for Army personnel.  Therefore,
the applicant's record of service is insufficiently meritorious to warrant
a general discharge or honorable discharge.

10.  The applicant’s voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, for the good of the service to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.  He had an opportunity to submit a
statement in which he could have voiced his concerns and he failed to do
so.

11.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.

12.  Records show the applicant should have discovered the alleged
injustice now under consideration on 14 August 1970; therefore, the time
for the applicant to file a request for correction of any injustice expired
on 13 August 1973.  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

JI______  RO_____  BK______  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.




            _John Infante_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040009558                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050721                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19700814                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 10                   |
|DISCHARGE REASON        |For the good of the service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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