RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        4 OCTOBER 2005
      DOCKET NUMBER:  AR20040010489


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Mark Manning                  |     |Chairperson          |
|     |Mr. Larry Bergquist               |     |Member               |
|     |Ms. Carmen Duncan                 |     |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 records be corrected by upgrading his
characterization of service.

2.  The applicant states that the nature of his infractions when compared
to others with similar age and experience are out of proportion to the
offense and excessive.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 14 June 1971.  The application submitted in this case is dated
24 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 enlisted in the Regular Army and entered active duty on
31 December 1968, at the age of 19.  He served in Vietnam from June 1969 to
June 1970.

4.  In November 1969, the applicant was punished under Article 15 of the
Uniform Code of Military Justice for failing to report to his place of duty
and being in an off-limits area.

5.  On 6 January 1970, he was convicted by a summary court-martial of being
in an off limits area, and of stealing a television set from another
Soldier.  He was sentenced to a reduction, restriction and a forfeiture of
pay.

6.  On 27 April 1971, the applicant was convicted by the 5th District Court
of Comanche County, Oklahoma, of possession of marijuana.  He was sentenced
to 2 years probation.

7.  On 7 May 1971, a medical examination cleared the applicant for
separation.

8.  A Mental Status Evaluation cleared the applicant for separation.

9.  The applicant was notified by his commander that he was initiating
action to eliminate him from the service under the provisions of Army
Regulation 635-206, because of his civil conviction.

10.  The applicant acknowledged that he had been advised of the basis for
his commander’s elimination action.  He waived consideration of his case by
a board of officers, waived representation by counsel, and elected not to
submit a statement in his own behalf.  He also acknowledged that he
understood that as a result of issuance of an under conditions other than
honorable discharge he would be ineligible for many or all benefits as a
veteran under both Federal and State laws, and may expect to encounter
substantial prejudice in civilian life.

11.  In May 1971, his unit commander recommended his elimination under the
provisions of Army Regulation 635-206, stating that the applicant had
appeared in the 5th District Court of Comanche County, Oklahoma for reasons
of civil conviction and was awarded a two year deferred sentence for
possession of marijuana.

12.  On 19 May 1971, his senior commander recommended approval of his
elimination under Army Regulation 635-206.

13.  On 8 June 1971, the appropriate separation authority approved the
applicant’s discharge and directed the issuance of an undesirable
discharge.

14.  On 14 June 1971, the applicant was discharged under the provisions of
Army Regulation 635-206.  His DD Form 214 (Armed Forces of the United
States Report of Transfer or Discharge) indicates he had 2 years, 5 months
and 14 days of creditable service.

15.  The applicant applied to the Army Discharge Review Board (ADRB) to
upgrade his discharge.  On 7 December 1973, the ADRB reviewed and denied
the applicant’s request for upgrade.  The ADRB determined that the
applicant’s discharge was proper and equitable and that the discharge was
properly characterized as under other than honorable conditions.



16.  Army Regulation 635-206, then in effect, provided, in pertinent part,
that an enlisted member who was convicted by a civilian court of an offense
for which the authorized punishment under the UCMJ included confinement of
1 year or more was to be considered for elimination.

17.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the
3 year limit on filing to the Army Board for Correction of Military Records
(ABCMR) should commence on the date of final action by the ADRB.  In
complying with this decision, the ABCMR has adopted the broader policy of
calculating the 3-year time limit from the date of exhaustion in any case
where a lower level administrative remedy is utilized.

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.  The applicant declined
counsel, waived his right to a hearing before a board of officers, and
elected not to submit a statement in his own behalf.  He also acknowledged
that he understood the effects of receiving a less than honorable
discharge.

3.  The applicant's contention that he was young and inexperienced at the
time is not sufficiently mitigating to warrant relief.  The Board notes
that the applicant was 20 years of age at the time of his first offense.

4.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.






5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 7 December 1973.
As a result, the time for the applicant to file a request for correction or
any error or injustice to this Board expired on 6 December 1976.  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

___MM__  ___LB___  ___CD __  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.




                                  ______Mark Manning_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010489                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051004                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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