RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 August 2005
      DOCKET NUMBER:  AR20040011569


      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. Jeanie M. Biggs               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Ms. Linda M. Baker                |     |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, that his general discharge be
upgraded to an honorable discharge.

2.  The applicant states “I was discharged under provisions of AR 635-206.
I believe this action was neither just, nor warranted.  I had served
honorable for the first five years of service, but got on the wrong side of
my new commanding officer when I threatened him with legal actions
concerning disregard for my instruction on a medical mission.  I was
arrested by civilian authorities, after being set up by this commander,
with no bad time to the army.  I was arrested on a weekend and was back on
duty on time on Monday.  A ‘Report for Suspension of Favorable Personnel
Actions’ listing confinement by civilian authorities as cause was filed
BEFORE I was arrested.  Discharge prodeedings were initiated before I was
convicted by the civilian court.  I took leave to serve my civilian
conviction and have no bad time toward my military service.  There was also
misconduct on the part of the board of officers in the 635-206 proceedings
that I do not have space here to present.  The chairman of the board LIED
about the court reporter’s involvement in their decision.  In the
transcript of the proceedings it clearly states that the reporter presented
a case before the board.  The chairman of the board stated that the
reporter did not present a case, but was asked to present a copy of
regulation.  My appeal was denied because of this lie.  All the documents
are in my military records.  I would ask that you look at the time frame of
all documents of these proceedings.  You will find several discrepancies.
The character of my service did not change so radically in a one year
period.  Take a look at the ‘Enlisted Efficiency Report’ dated 07 December
1976; ten days before I was arrested, Captain _____ later lists my Conduct
and Efficiency as ‘Unknown’.  These people wanted to make an example of me
and in the process they persecuted me to the extent that I lost my self
esteem and have suffered physically for 27 years.  I feel my case deserves
review.  I have proof of everything I have presented here.  I will attach,
or send, these records and explainations as needed.”

3.  The applicant provided copies of his discharge proceedings packet.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 21 July 1977.  The application submitted in this case is dated
12 January 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 military records show he was enlisted on 30 August 1971
for a period of 3 years.  He successfully completed basic combat and
advanced individual training and was awarded the military occupational
specialty (MOS) 91B20 (medical specialist).  He was discharged 8 July 1973
for immediate reenlistment.  He had completed 1 year, 10 months and 9 days
of active service characterized as honorable.  The applicant reenlisted on
9 July 1973 for a period of 6 years.  He was assigned to Germany during the
period 9 July 1973 to           2 February 1975.  The highest grade the
applicant held was specialist 5/pay grade E-5.

4.  On 5 March 1975, the applicant accepted nonjudicial punishment (NPJ)
under Article 15, Uniform Code of Military Justice (UCMJ) for failing to go
to appointed place of duty.

5.  The applicant accepted NJP under Article 15, UCMJ, on 21 May 1976 for
failing to go to appointed place of duty.

6.  The applicant was tried and convicted by civil court On 17 December
1976 for possession of marijuana.  He was sentenced to 1 year in the county
jail with 40 days to serve and the balance to be suspended.  He also was
fined $185.00 and the cost of court.  The cost of court was dismissed on 4
Mach 1977.

7.  On 24 February 1977, the applicant accepted NJP under Article 15, UCMJ
for failing to go to appointed place of duty.

8.  On 4 April 1977, the applicant’s commander notified him that he was
initiating action to discharge under the provisions of Army Regulation 635-
206 because of conviction by a civil court.

9.  The commander advised the applicant of his rights to have his case
considered by a Board of officers; to appear in person before a Board of
officers; to submit statements in his own behalf; to be represented by
counsel; to waive any of these rights; and to withdraw any wavier of rights
at any time prior to the date the discharge authority directs or approves
his discharge, and request his case be presented before a Board of
officers.

10.  On 4 April 1977, the applicant submitted a statement acknowledging
that he had been advised by a Judge Advocate General (JAG) officer of the
basis for the contemplated action against him under the provisions of Army
Regulation 635-206 due to conviction by a civil court.  The applicant
requested consideration by a Board of officers and personal appearance
before a Board of officers.  The applicant stated that he was not
submitting statements in his own behalf.

11.  The applicant also acknowledged that, as the result of issuance of a
discharge under conditions other than honorable; he may be ineligible for
many or all benefits as a veteran under both federal and state laws, and
that he may expect to encounter substantial prejudice in civilian life.

12.  On 14 April 1977, the applicant’s commander recommended that he be
required to appear before a Board of Officers convened under the provisions
of Army Regulation 635-206 and that he be issued an under other than
honorable conditions discharge.

13.  The intermediate commander recommended approval and that an under
other that honorable conditions discharge be issued.

14.  On 28 April 1977, the applicant was notified to appear before a Board
of Officers to determined if he should be discharged because of conviction
by civil court before the expiration of his term of service,

15.  On 19 May 1977, a Board of Officers convened and recommended that the
applicant be discharged and issued an under other than honorable conditions
discharge.

16.  On 21 July 1977, the applicant was discharged under the provisions of
Section VI of Army Regulation 635-206 due to conviction of a civil court.
He had 4 years and 13 days of active service.

17.  The applicant applied to the Army Discharge Review Board (ADRB) to
upgrade his discharge.  On 12 July 1977, the ADRB voted unanimously to
grant partial relief on the basis that the applicant’s discharge was proper
but not equitable.  The ADRB noted that the applicant was discharged as a
result of a civil conviction for possession of marijuana.  The ADRB also
noted that during the applicant’s hearing by his Board of Officers, it was
brought out that he had three punishments under Article 15.  The Board of
Officers determined based on the disciplinary record and the civil
conviction that he should be discharged with an undesirable discharge.  In
the ADRB’s opinion the acts of indiscipline were relatively minor in nature
as was the civil conviction.  The ADRB also considered the applicant’s 4
years of service most of which was rated excellent and included the award
of a good conduct medal.  The ADRB voted to upgrade the applicant’s
undesirable discharge.  The ADRB considered the undesirable discharge as
too harsh.  A generable discharge was issued to the applicant.

18.  Army Regulation 635-206 (Personnel Separations), in effect at the
time, set forth the basic authority for the separation of enlisted
personnel for misconduct (fraudulent entry, conviction by civil court, and
AWOL or desertion).  That regulation provided, in pertinent part, that an
individual will be considered for discharge when he has been initially
convicted by civil authorities, or action taken against him which is
tantamount to a finding of guilty, of an offense for which the maximum
penalty under the Uniform Code of Military Justice is death or confinement
in excess of 1 year.  An undesirable discharge was normally considered
appropriate.

19.  Army Regulation 635-200 (Personnel Separations), in effect at the
time, 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.  Whenever
there is doubt, it is to be resolved in favor of the individual.

20.  Army Regulation 635-200, in effect at the time, 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.  The applicant contends that his general discharge characterized as
under honorable conditions should be upgraded to honorable.

2.  Evidence shows that the applicant was properly and equitably discharged
in accordance with regulations in effect at the time.  The type of
discharge directed and the reasons for separation were appropriate
considering all the facts of the case.  The records contain no indication
of procedural or other errors that would tend to jeopardize his rights.

3.  The applicant’s record of service shows that he received nonjudicial
punishment on three occasions and was convicted by a civil court.  As a
result, his quality of service did not meet the standards of acceptable
conduct and performance of duty for Army personnel.  Therefore, the
applicant is not entitled to an honorable discharge.

4.  The ADRB has already upgraded the applicant’s undesirable discharge to
a general discharge based solely on equity considerations.  There is
insufficient basis to further upgrade the applicant’s discharge to fully
honorable.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 21 July 1977; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         20 July 1980.  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

__mkp___  ___reb __  ___lmb__  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.




                                  ____Margaret K. Patterson_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011569                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050825                                |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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