RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:
      DOCKET NUMBER:  AR20040011736


      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             |
|     |Mrs. Victoria A. Donaldson        |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Ms. Linda M. Barker               |     |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 discharge be upgraded to a general
under honorable conditions discharge.

2.  The applicant states he made a mistake and requests consideration at
this time because he needs help.

3.  The applicant provided three letters in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 16 September 1974, the date of his discharge.  The
application submitted in this case is dated 8 December 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.  The U.S. 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 (AR 15-185, paragraph 2-8),
effectively shortens that filing period, has determined that the 3 year
limit on filing to the ABCMR should commence on the date of final action by
the ADRB.  In complying with this decision, the Board 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.

3.  The applicant’s record shows he enlisted in the Regular Army and
entered active duty on 27 March 1969.  He was trained in, awarded and
served in military occupational specialty (MOS) 94B20 (Cook) and the
highest rank he attained while serving on active duty was specialist
five/pay grade E-5.  The applicant's records also show he reenlisted on two
occasions.

4.  Records show the applicant served in the Republic of Vietnam during the
period 18 September 1969 through 15 November 1971 and while he was
stationed in Vietnam he participated in five battle campaigns.

5.  The applicant’s record documents show he received numerous awards
including the National Defense Service Medal, the Vietnam Service Medal,
and the Vietnam Campaign Medal.



6.  The record reveals a disciplinary history which includes his acceptance
of nonjudicial punishment (NJP) under the provisions of Article 15 of the
Uniform Code of Military Justice (UCMJ) on the following six separate
occasions for the offenses indicated:  12 November 1971, for possession of
heroin; 31 January 1972, for being absent without leave (AWOL) during the
period 5 January 1972 through 18 January 1972; 3 April 1972, for being AWOL
during the period 1 April 1972 through 1 August 1972; 20 November 1973, for
failure to obey a direct order; 15 June 1973, for being AWOL during the
period 4 July 1972 through 20 March 1973; and 20 November 1973, for failure
to obey a direct order.

7.  The facts and circumstances of the applicant's discharge are not in the
available records.

8.  The applicant's records contain a DD Form 214 (Report of Separation
From Active Duty) which show he was discharged under the provisions of the
chapter 10 of Army Regulation 635-200 (Personnel Separations) under other
than honorable conditions.  The applicant served 4 years and 25 days of
active service with 510 days due to AWOL.

9.  On 2 October 1976, the applicant requested the Army Discharge Review
Board (ADRB) upgrade his general under other than honorable conditions
discharge to an honorable discharge.  The proceedings of the ADRB action
are not in the available records.

10.  The applicant's records contain a 3 January 1978 letter from the
Department of the Army Military Review Boards Agency which states a request
for review of the applicant's discharge was received.  This letter further
states that since the applicant was AWOL for over 180 days, he was not
entitled to Veterans Benefits regardless of the actions taken by the Board.
 This letter provided the applicant with alternate courses of action which
included making application to the ABCMR or requesting consideration by the
Department of Veterans Affairs.

11.  The applicant's records contain a U.S. Army Discharge Review Board
Case Report and Directive, dated 14 August 1978.  This report shows the
ADRB considered the applicant's request for upgrade of his discharge and
voted 3 to 2 to deny the applicant's request.  The minority cited the
applicant's previous good service as a reason for granting the applicant's
request.

12.  By letter dated 28 September 1978, the Office of the Adjutant General
and the Adjutant General Center notified the applicant the ADRB denied his
request for upgrade of his discharge.

13.  On 12 December 1978, the Office of the Adjutant General, Reserve
Components Personnel and Administration Center, notified the applicant of
his rights based on Court Decision Number 76-0530, dated 23 August 1978,
which provided for a new hearing under the provisions of the Special
Discharge Review Program or a new hearing to regain Veterans Benefits.
This letter stated the applicant must apply for consideration under this
program and provided him with a new application.

14.  There is no evidence the applicant completed and/or submitted a new
application for consideration of his request for upgrade of his discharge
under the provisions of the Special Discharge Review Program.

15.  The applicant provided a 19 October 2004 letter from his sister-in-law
.  She essentially states the applicant was injured while serving in the
armed forces and remains disabled to this day.  His sister-in-law contends
that as a young man, the applicant gave his life for our country and
continues to be treated unfairly without the benefits deserving of a U.S.
Veteran.  She concludes the applicant is entitled to receive a full benefit
package because he courageously earned it.

16.  The applicant provided a 5 November 2004 letter from his daughter who
states her father is the "best man in the world."  The applicant's daughter
continues by providing generally positive statements with regard to her
father's personality.

17.  The applicant provided a 15 December 2004 letter from his wife.  His
wife stated her husband served the Army in Vietnam and apologizes for his
unexcused absences.  She continues her husband is a proud American who may
have been exposed to "Agent Orange" and is now very ill with cancer.  The
applicant's wife argues her husband is a proud man, fighting for his life,
who needs medical benefits.  She concludes by requesting her husband's
discharge be upgraded to general under honorable conditions.

18.  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 was normally considered
appropriate.


19.  Army Regulation 635-200, paragraph 3-7, 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, paragraph 3-7, 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.

21.  The Special Discharge Review Board Program, often referred to as the
“Carter Program,” was announced on 29 March 1977.  The program mandated
upgrade of administrative discharges if the applicant met one of seven
specified criteria.

22.  Public Law 95-126.  This law, enacted on 8 October 1977, provided
generally, that no VA benefits could be granted based on any discharge
upgraded under the Ford memorandum of 19 January 1977, or the DOD Special
Discharge Review Program.  It required the establishment of uniform
published standards which did not provide for automatically granting or
denying a discharge upgrade for any case or class of cases.  The services
were required to individually compare each discharge previously upgraded
under one of the special discharge review programs to the uniform standards
and to affirm only those cases which met those standards.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his discharge be upgraded to a general under
honorable conditions discharge because he is ill and needs medical
benefits.

2.  Lacking evidence to the contrary, the applicant's request for
separation under provisions of chapter 10 of Army Regulation 635-200 for
the good of the service to avoid trial by court-martial was voluntary,
administratively correct, and in compliance with applicable regulations.




3.  There is no evidence which shows the applicant was not properly and
equitably discharged in accordance with the regulations in effect at the
time, that all requirements of law and regulations were not met, or the
rights of the applicant were not fully protected throughout the separation
process.  Absent such evidence, regularity must be presumed in this case.

4.  The applicant's record of service included six nonjudical punishments
for various offenses including being AWOL, possession of heroin, and
failure to obey orders.

5.  Based on this record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  Therefore, he is not entitled to either a general
under honorable conditions discharge or an honorable discharge.

6.  The ABCMR does not grant requests for upgrade of discharges solely for
the purpose of making the applicant eligible for Veterans or medical
benefits.

7.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 14 August 1978.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 13 August 1981.  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 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.




                                        _M. K. Paterson_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011736                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050825                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |16 September 1974                       |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Chap 10                                 |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0000.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]