RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 September 2005
      DOCKET NUMBER:  AR20040011727


      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. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Richard T. Dunbar             |     |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 discharge under other than
honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he had a good military record and
that he was asked, while he was living on the economy in Germany, to aid
the local Criminal Investigation Division (CID) agents in the enforcement
of laws against drug and terrorist activities in the Frankfurt area.  He
states that he had to absent himself without leave (AWOL) and that he was
not able to inform any military supervisors of his status.

3.  The applicant provides no additional information in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 30 October 1978.  The application submitted in
this case is dated 21 April 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.  After completing 2 years, 11 months and 19 days of prior active Army
service, he reenlisted in the Army on 6 April 1973, for 5 years, in the pay
grade of E-5.  At the time of his reenlistment he was at Fort Bragg in
Fayetteville, North Carolina, performing duties as a finance specialist.
He was transferred to Germany on 24 January 1975.

4.  The evidence of record shows that the applicant was assigned to the
503rd Finance Company in Germany when nonjudicial punishment (NJP) was
imposed against him on 20 July 1976 for leaving his appointed place of duty
on 30 June 1976.  His punishment consisted of a $75.00 forfeiture of pay
and extra duty for 7 days.

5.  On 1 August 1977, NJP was imposed against him for being AWOL from
6 April 1977 until 14 May 1977 and for failure to obey a lawful order that
was issued to him on 6 April 1977.  His punishment consisted of a reduction
to the pay grade of E-4, a forfeiture of pay in the amount of $150.00 per
month for 2 months and restriction and extra duty for 45 days.

6.  The applicant went AWOL again on 13 August 1977.  While he was AWOL,
CID received notification from a Frankfurt military police desk sergeant
that on 18 September 1977, the applicant had been apprehended by German
police for possession of suspected heroin and drug paraphernalia.
According to the police, the applicant had been sleeping in a room in
Frankfurt, Germany along with a German prostitute, when the police
conducted a routine identification check of the occupants of the building.
Upon entering the room, the police discovered a small envelope containing
suspected heroin and three hypodermic syringes, on top of a table in the
room.  There were also several small pieces of tissue bearing apparent
bloodstains on the floor.  The CID report indicates that he was processed
and released to his unit and that all evidence was retained by the German
police.

7.  On 19 September 1977, the applicant was admitted to the 97th General
Hospital for detoxification.  He was released from the hospital on 22
September 1977; however, he failed to return to his unit.

8.  A final Report of Investigation dated 11 November 1977, indicates that
investigation by German criminal police disclosed that there was
insufficient evidence to substantiate that the applicant was in possession
of a controlled substance and drug paraphernalia as initially reported.
However, the prostitute was found in possession of an undetermined amount
of heroin and three syringes.

9.  On 23 August 1978, the applicant was notified that charges were pending
against him for being AWOL from 13 August until 18 September 1977 and from
22 September 1977 until 22 August 1978.  He acknowledged receipt of the
notification and after consulting with counsel, he submitted a request for
discharge under the provisions of Army Regulation 635-200, chapter 10, for
the good of the service in lieu of trial by court-martial.  Along with his
request for discharge, he submitted a statement in his own behalf
indicating that he went AWOL as a result of being told that he could not
work in the disbursing section in the finance office; racial prejudice;
manual labor punishment; and harassment.



10.  The appropriate authority approved the request for discharge on
13 October 1978.  Accordingly, on 30 October 1978, the applicant was
discharged under other than honorable conditions, under the provisions of
Army Regulation
635-200, chapter 10, for the good of the service in lieu of trial by court-
martial.  He had completed 7 years, 5 months and 2 days of total active
service and he had approximately 408 days of lost time due to AWOL and
approximately 139 days of lost time subsequent to his normal expiration
term of service.

11.  The applicant applied to the Army Discharge Review Board (ADRB) to
upgrade his discharge.  On 10 April 1981, the ADRB 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.

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
submit a request for discharge for the good of the service in lieu of trial
by court-martial.  The request may be submitted at any time after charges
have been preferred and must include the individual's admission of guilt.
Although an honorable or general discharge is authorized, a discharge under
other than honorable conditions is normally considered appropriate.

13.  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 United States Court of Appeals,
observing that applicants to the 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.  It appears that 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.

3.  The applicant's contentions have been noted.  However, the available
records fail to substantiate his contention that the reason he went AWOL
was because he was asked to aid CID agents in the enforcement of laws
against drug and terrorist activities.  The evidence of record shows that
at the time of his discharge, he submitted a statement in his own behalf
stating that he went AWOL as a result of being told that he could not work
in the disbursing section in the finance office; racial prejudice; manual
labor punishment; and harassment and there is no evidence in the available
records to substantiate these claims.

4.  The applicant had over 1 year of lost time as a result of being AWOL
and it is clear that he had no desire to remain in the Army.  He has
provided no evidence to support neither the contentions that he made prior
to his discharge nor his current contentions and in the absence of evidence
to the contrary, it must be presumed that what the Army did in his case was
correct.

5.  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.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 10 April 1981.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 9 April 1984.  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

__sk____  __bje___  __rtd___  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.



                                        Stanley Kelley
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011727                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050901                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19781030                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |CHAPTER 10                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  689  |144.7000/FOR THE GOOD OF SERVICE        |
|2.  708                 |144.7100/CONDUCT TRIABLE BY CM          |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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