RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           2 August 2005
      DOCKET NUMBER:  AR20040009633


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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, an upgrade of his undesirable
discharge (UD).

2.  The applicant states, in effect, that he was a good Soldier until he
got on drugs in Germany in 1975-1976.  He further states he was told to
take the discharge or go to prison for 5 years.  He also claims he was told
his discharge would be upgraded to a general, under honorable conditions
discharge (GD) in six months.  He further states that he asked for
rehabilitation, but was denied.

3.  The applicant provides the following documents in support of his
application:  Self-Authored Statement, Separation Document (DD Form 214),
Letter of Appreciation, and Enlisted Evaluation Report (DA Form 2166-5).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 2 December 1976.  The application submitted in this case
is dated
5 November 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’s record shows he enlisted in the Regular Army and
entered active duty on 16 August 1974.  He was trained in and awarded
military occupational specialty (MOS) 11E (Armor Crewman), and the highest
rank he attained while serving on active duty was specialist four (SP4).

4.  The applicant’s record shows that during his active duty tenure, he
earned the National Defense Service Medal (NDSM) and Marksman Qualification
Badge with Rifle Bar.  There are no acts of valor, or significant
achievement documented in the record.

5.  The applicant’s record reveals a disciplinary history that includes two
separate periods of him being absent without leave (AWOL).  The first was
from
21 through 24 June 1976, and the second was from 6 July through 3 November
1976.

6.  On 9 November 1976, a Charge Sheet (DD Form 458) was prepared that
preferred a court-martial charge against him for violating Article 85 of
the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about
6 July 1976 through on or about 4 November 1976.

7.  On 10 November 1976, applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
maximum permissible punishment authorized under the UCMJ, the possible
effects of an UD, and of the procedures and rights that were available to
him.  Subsequent to receiving this legal counsel, the applicant voluntarily
requested discharge for the good of the service, in lieu of trial by court-
martial.

8.  In his request for discharge, the applicant also indicated that he
understood that by requesting discharge, he was admitting guilt to the
charge against him, or of a lesser included offense, that also authorized
the imposition of a bad conduct or dishonorable discharge.  He further
acknowledged he understood that if his discharge request was approved, he
could be deprived of many or all Army benefits, that he could be ineligible
for many or all benefits administered by the Department of Veterans Affairs
(VA), and that he could be deprived of his rights and benefits as a veteran
under both Federal and State law.

9.  On 2 December 1976, the separation authority approved the applicant’s
request for discharge and directed that he receive an UD, and that he be
reduced to the lowest enlisted grade, and the applicant was discharged
accordingly.  The DD Form 214 he was issued on the date of his discharge, 2
December 1976, confirms he completed a total of 1 year, 11 months and 14
days of creditable active military service, and that he accrued 123 days of
time lost due to AWOL.

10.  The applicant provides an evaluation report that covered a six month
period from July through December 1975.  It shows he received a total
evaluation score of 109.5 out of a possible 125, and it contains generally
good remarks on his duty performance.  He also provides a letter of
appreciation from his battalion commander, which commended him for the good
job he did during the unit’s annual tank gunnery program.

11.  There is no indication in the record that the applicant applied to the

Army Discharge Review Board (ADRB) for an upgrade of his discharge within
its 15-year statute of limitations.

12.  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.  A
discharge under other than honorable conditions is normally considered
appropriate. However, at the time of the applicant's separation the
regulation provided for the issuance of an UD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his drug use and the denial of
rehabilitation for this condition impaired his ability to serve was
carefully considered.  However, there is insufficient evidence to support
this claim.

2.  The applicant’s contention that his overall record of good service
supports an upgrade of his discharge and the supporting documents he
submitted were also carefully considered.  However, the evidence of record
while indicating some periods of good performance, documents no acts of
valor, or significant achievement.  Further, the applicant earned no
individual awards during his active duty tenure.  Therefore, it is clear
his overall record of service is not sufficiently meritorious to support an
upgrade of his discharge at this time.

3.  The applicant’s contention that he was told his discharge would be
upgraded to a GD in six months was also evaluated.  However, there is
insufficient evidence to support this claim.  Further, the Army does not
have, nor has it ever had, a policy to automatically upgrade discharges.
Each case is decided on its own merits when an applicant petitions the ADRB
or this Board requesting a change in discharge.  A change to the discharge
may be warranted if either Board finds the discharge was improper or
inequitable.

4.  The evidence of record confirms the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, he voluntarily requested
discharge in lieu of trial by court-martial.  The record further confirms
all requirements of law and regulation were met and that the rights of the
applicant were fully protected throughout the separation process.
5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 2 December 1976.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 1 December 1979.  However, he failed to 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

___WDP_  ___RLD_  ___JRM _  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.




            ____William D. Powers____
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20040009633                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/08/02                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1976/12/02                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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