RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 SEPTEMBER 2005
      DOCKET NUMBER:  AR20040010716


      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. Ronald Blakely                |     |Chairperson          |
|     |Mr. Lawrence Foster               |     |Member               |
|     |Ms. LaVerne Douglas               |     |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 and
that the reason for his discharge be changed to show he was discharged for
medical reasons.

2.  The applicant states he was in "detox" and unjustly discharged.  He
states his discharge should be upgraded because he served his time
honorably.

3.  The applicant provides numerous statements from family, friends, and co-
workers.  Most of the statements were authored in 1990 and addressed "To
Whom it May Concern."  Several other statements addressed similarly were
authored in 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 22 December 1972.  The application submitted in this case
is dated
10 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.  Records available to the Board indicate the applicant enlisted and
entered active duty for a period of 3 years on 18 February 1970.  He
successfully completed training as a helicopter repairman and was assigned
to Vietnam in August 1970.

4.  He was awarded an Air Medal for meritorious achievement during the
period September 1970 and October 1970, promoted to pay grade E-4 in
November 1970, and in March 1971 awarded an Army Commendation Medal.

5.  In August 1971 the applicant was evacuated from Vietnam to an Army
hospital at Fort Hood, Texas because of drug abuse.  He was subsequently
restored to duty with an aviation battalion at Fort Hood.

6.  In December 1971 he was punished under Article 15 of the Uniform Code
of Military Justice for 6 days of AWOL.

7.  On 25 February 1972 he was readmitted to the hospital because of drug
abuse, detoxified and on 2 March 1972 returned to duty with follow-up
counseling.  His admission to the hospital was determined to be due to the
applicant's own misconduct and not in the line of duty.

8.  On 19 April 1972 the applicant was punished for failing to show up for
a scheduled appointment with the drug abuse program officer.

9.  On 11 June 1972 the applicant departed AWOL.  He was dropped from the
rolls of the Army in July 1972 and subsequently apprehended by civilian
authorities and returned to military control at the end of November 1972.

10.  Although documents associated with the applicant's administrative
discharge were not in records available to the Board, his separation
document indicates he was discharged under other than honorable conditions
on 22 December 1972 under the provisions of Army Regulation 635-200,
Chapter 10, in lieu of trial by court-martial, and issued an Undesirable
Discharge Certificate.

11.  However, as part of his separation physical examination, the applicant
indicated that his health was good and noted that his only medical problem
had been a broken wrist at age 9.  The examining physician found him
medically qualified for separation with a physical profile of 1-1-1-1-1-1.
A mental status evaluation, conducted on 8 December 1972 indicated the
applicant was fully alert, his thought process clear and normal and that he
was mentally responsible, able to distinguish right from wrong and to
adhere to the right.

12.  The statements submitted by the applicant from family and friends note
the applicant was a good person without any troubles prior to going to
Vietnam but was changed when he came back from Vietnam.  They indicate the
applicant never had problems with drugs or alcohol until his service in
Vietnam.

13.  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 and issuance of an
undesirable discharge certificate was considered appropriate at the time.
Included in the procedures for requesting a separation for the good of the
service, in lieu of trial by court-martial, was a provision for the Soldier
to consult with counsel prior to executing his voluntary request for
separation.

14.  Army Regulation 635-40, which establishes the policies and procedure
for the separation or retirement of Soldiers by reason of physical
disability states a Soldier may not be referred for, or continue, physical
disability processing when action has been started under any regulatory
provision which authorizes a characterization of service of under other
than honorable conditions unless the general court-martial convening
authority determines that the disability is the cause, or a substantial
contributing cause, of the misconduct that might result in a discharge
under other than honorable conditions.

15.  There is no indication the applicant applied to the Army Discharge
Review Board to have his discharge upgraded.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it can be concluded that
the applicant's administrative separation was accomplished in accordance
with applicable laws and regulations, and as a result of his own request.

2.  The applicant has provided no evidence that he was in "detox" at the
time of his discharge.  In fact, the applicant indicated that he was in
good health at the time he was discharged in lieu of trial by court-martial
in December 1972.

3.  While the aguish of family, friends, and co-workers who watched the
applicant change as a result of his military service is understandable, the
evidence suggests that members of the applicant's chain of command were
attempting to assist the applicant with his drug problems via
detoxification and counseling programs but the applicant did not avail
himself to those programs.

4.  The applicant’s contention that he served honorably is not supported by
the evidence of record, which indicates that he was punished twice under
Article 15 of the Uniform Code of Military Justice, had been dropped from
the rolls of the Army, and requested discharged in lieu of facing the
consequences of a court-martial.  While his service in Vietnam is certainly
noteworthy it does not outweigh the seriousness of the applicant's conduct
and does not provide an adequate basis to grant relief as a matter of
equity.




5.  There is no evidence, and the applicant has not provided any, which
confirms he had any medically unfitting disability which required physical
disability processing or that such medical conditions were the basis for
the charges which ultimately led to his separation for the good of the
service in lieu of trial by court-martial.  Therefore, there is no basis
for physical disability retirement or separation.

6.  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 this requirement.

7.  The actions by the Army in this case were proper, and there is no doubt
to be resolved in favor of the applicant.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 December 1972; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
21 December 1975.  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

___RB __  __LF  ___  __LD  ___  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.




                                  _____ Ronald Blakely_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010716                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050927                                |
|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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