RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          26 August 2004
      DOCKET NUMBER:  AR2004100153


      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             |
|     |Mr. Luis Almodova                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Ms. Margaret V. Thompson          |     |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 be upgraded to an
honorable discharge.

2.  The applicant states, in effect, that the boy he enlisted with has an
honorable discharge because he took his last UA (urine analysis) and
failed.  The applicant states that he failed 2 UAs and was sent home to
clean up.  After going through withdrawals he realized he could not come
back to a place where drugs were so available.  He adds that he should not
be punished over one UA.  He has lived with this for 30 years and he knows
people who have died for our country.  The ones now alive prompted him to
seek an upgrade of his discharge.  The applicant adds that he loves his
country and would fight or serve again if called upon to do so – no
questions asked.

3.  The applicant provides two character reference memorandums addressed:
To Whom It May Concern, from acquaintances, and a self-authored account
about the activities leading up to his discharge from the Army.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice that
occurred on 13 March 1975.  The application submitted in this case is dated
9 December 2003.

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 limitation 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 for 3 years on 3 April 1972.
 The applicant completed basic combat training at Fort Dix, New Jersey, and
his advanced individual training at Fort Knox, Kentucky.  Upon completion
of all required training, he was awarded the Military Occupational
Specialist (MOS) 11E, Armor Crewman.

4.  On 8 May 1972, the applicant received nonjudicial punishment under the
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for

absenting himself from his unit at 0600 hours, on 3 May 1972, and remaining
absent until 0700 hours on 8 May 1972.  The imposed punishment was a
forfeiture of $54.00 and extra duty and restriction for 14 days.  The
applicant did not appeal the punishment.

5.  On 13 September 1972, the applicant was assigned to Troop A, 1st
Squadron, 11th Armored Cavalry Regiment, in Germany.

6.  The applicant was promoted to the rank and pay grade, Private First
Class,
E-3, on 1 February 1973.  The applicant's record contains no documentary
evidence of acts of valor, achievement, or service warranting special
recognition.

7.  On 30 April 1973, the applicant received nonjudicial punishment under
the provisions of Article 15 of the UCMJ for failing to go to his appointed
place of duty on 29 April 1973.  The imposed punishment was a forfeiture of
$70.00 and extra duty and restriction for 10 days.  The applicant did
not appeal the punishment.

8.  On 19 August 1973, the applicant was reported absent without leave
(AWOL) from his unit.  The applicant was dropped from the rolls of his
organization on 19 September 1973.

9.  The applicant surrendered to civilian authorities at Lawton, Oklahoma,
and was returned to military control at the US Army Personnel Control
Facility, Fort Sill, Oklahoma, on 27 February 1975.

10.  The evidence shows that on 28 February 1975, court-martial charges
were preferred against the applicant for being AWOL from 19 August 1973
until he returned to military control on 27 February 1975.

11.  The evidence of record shows that on 28 February 1975, the applicant
consulted with counsel and submitted a request for discharge from the
service under AR 635-200, Chapter 10, for the good of the service.

12.  In his request for discharge, the applicant acknowledged that he was
voluntarily requesting discharge for the good of the service.  He stated
that he understood that he could request discharge because charges had been
preferred against him under the UCMJ, which authorized imposition of a bad
conduct or dishonorable discharge.  He stated that he was making the
request of his own free will and had not been subjected to coercion
whatsoever by any person and
he had been advised of the implications attached to it.  He stated that he
understood that by submitting his request for discharge, he acknowledged
that he was guilty of the charges against him or of any lesser and included
offenses.  Additionally, he stated that:  under no circumstances did he
desire further rehabilitation or to perform further military service; that
if his request for discharge were accepted, he could be discharged under
other than honorable conditions or furnished an undesirable discharge
certificate that he understood the possible effects of an undesirable
discharge and that as a result of issuance of such a discharge, he could be
deprived of many or all benefits administered by the Veterans
Administration [now the Department of Veterans Affairs] and that he may be
deprived of his rights and benefits as a veteran under both Federal and
State law; and that he may expect to encounter substantial prejudice in
civilian because of an undesirable discharge.

13.  The applicant was given an opportunity to make a statement in his own
behalf and declined to do so.

14.  The applicant's chain of command unanimously recommended approval of
his request and recommended that he be discharged with an undesirable
discharge.

15.  The separation authority, a major general, approved the applicant's
discharge on 10 March 1975 and directed that he be reduced to the lowest
enlisted rank and pay grade and that he be discharged with an undesirable
discharge.

16.  The applicant was discharged in the rank and pay grade of Private, E-
1, on 13 March 1975, under the provisions of Army Regulation (AR) 635-200,
Chapter 10.  The applicant's service was characterized as, "Under Other
than Honorable Conditions."

17.  On the date of his discharge, the applicant had completed 1 year, 5
months, and 2 days, active military service and had 557 days lost time.

18.  There is no evidence that the applicant applied to the Army Discharge
Review Board during its 15-year statute of limitations for an upgrade of
his discharge.

19.  AR 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, at any time after
the charges have been preferred, a request for discharge for the good of
the service, in lieu of trial by court-martial.  A discharge under other
than honorable conditions is normally considered appropriate, but the
separation authority may direct a general discharge or an honorable
discharge if such is merited by the soldier's overall record and if the
soldier's record is so meritorious that any other characterization clearly
would be improper.

20.  AR 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, 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.

21.  The above referred to regulation also defines a general discharge as 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 separation specifically allows such characterization.

22.  In his self-authored statement, the applicant states that while in
Fulda, Germany, he had become addicted to drugs and it was discovered by a
urine analysis.  Not long after, he failed a second UA.  He alleges that
his mother and the squadron commander conversed and thought he should come
home on leave because if he failed a third UA, he would be expelled from
the Army and given a general, under honorable discharge.  This was not
acceptable, so he took a 30-day leave to try and straighten himself out.
After suffering withdrawals and realizing that the drugs were as easy to
get as beer in Germany, he knew he would return to his old habits, which
could have been detrimental to his life.  After a 30-day leave and a 10-day
extension, he left his hometown to save face for his family and did not
return to Germany but instead went to Oklahoma where he married and
fathered four children.

23.  A Standard Form (SF) 600, Chronological Record of Medical Care, show
entries dated 23 May and 9 August 1973 showing that there was "recent
evidence of drug abuse X1" and that the applicant had been clinically
confirmed to be a drug abuser.  The applicant was given an "S-2" medical
condition profile and was entered into the Army's Drug Abuse Program.

24.  The character references that the applicant submitted state that he is
a good provider for his family.  His family appears to be of the utmost
importance to him.  He is a good friend, and a good neighbor.  He is always
the first to volunteer to help in another person's time of need.  He is a
great moral supporter and a good listener, no matter how trivial the
problem may be.

25.  Army Regulation 40-501, chapter 7, physical profiling, provides that
the basic purpose of the physical profile serial system is to provide an
index to the overall functional capacity of an individual and is used to
assist the unit commander and personnel officer in their determination of
what duty assignments the individual is capable of performing, and if
reclassification action is warranted.  Four numerical designations (1-4)
are used to reflect different levels of functional capacity in six factors
(PULHES): P-physical capacity or stamina, U-upper extremities, L-lower
extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical
designator 1 under all factors indicates that an individual is considered
to possess a high level of medical fitness and, consequently, is medically
fit for any military assignment.  Numerical designators 2 and 3 indicate
that an individual has a medical condition or physical defect which
requires certain restrictions in assignment within which the individual is
physically capable of performing military duty.  The individual should
receive assignments commensurate with his or her functional capacity.
Numerical designator 4 indicates that an individual has one or more medical
conditions or physical defects of such severity that performance of
military duty must be drastically limited.  The numerical designator 4 does
not necessarily mean that the individual is unfit because of physical
disability as defined in Army Regulation 635-40.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was charged with the
commission of an offense punishable with a punitive discharge under the
UCMJ.

2.  After consulting with defense counsel, the applicant voluntarily, and
in writing, requested separation from the Army under the provisions of Army
Regulation 635-200, Chapter 10, for the good of the service, to avoid trial
by court-martial.  In doing so, the applicant admitted guilt to the
stipulated offense under the UCMJ.

3.  The applicant’s voluntary request for separation, was administratively
correct and in conformance with applicable regulations.  There is no
indication that the request was made under coercion or duress.  The
evidence shows that all requirements of law and regulation were met and the
rights of the applicant were fully protected throughout the separation
process.

4.  While he may now believe that he made the wrong choice, the applicant
should not be allowed to change his mind at this late date.  Additionally,
it is noted that it was the applicant who requested a discharge for the
good of the service to avoid the possibility of a punitive discharge and of
having a felony conviction on his records.

5.  The evidence shows that the applicant was aware, before requesting
discharge, that the characterization of service for this type of discharge
is normally Under Other Than Honorable Conditions.

6.  The reason for discharge and the characterization of service appear to
be both proper and equitable.  Further, the evidence shows that the quality
of his service did not meet the standards of acceptable conduct and
performance expected of Army personnel; therefore, the applicant is not
entitled to an upgrade of his undesirable discharge to an under honorable
conditions (general) discharge, or to an honorable discharge.

7.  The applicant was entered into the Army Drug Abuse Program on 9 August
1973 and he was reported AWOL on 19 August 1973, only 10 days later, which
removes any credibility about a conversation he alleges to have taken place
between his squadron commander and his mother that they agreed that he
should take leave to get himself straightened out.

8.  By placing the applicant in the Drug Abuse Program and giving him an "S-
2" profile, and requiring him to submit to three drug urine tests per week
for eight weeks, the Army identified the applicant as having a problem and
was actively working to help the applicant to overcome it.  The numerical
designators "2" that was applied under the "S Factor" indicated that he had
a medical condition or physical defect which required certain restrictions
in assignment within which the individual was physically capable of
performing military duty.  The individual was to receive assignments
commensurate with his capacity to function.





9.  The character references submitted by the applicant have been noted.
However, they are not sufficiently mitigating to warrant relief when
compared to the length of his absence and his otherwise undistinguished
record of service.

10.  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.

11.  In view of the foregoing, there is no basis for granting the
applicant's request for an upgrade of his undesirable discharge.

12.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 13 March 1975; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 12 March 1978.  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

__rjw___  __le____  ___mvt__  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.



                                  Raymond V. Wagner
            ______________________
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR2004100153                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040826                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19750313                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 10                  |
|DISCHARGE REASON        |For the Good of the Service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  360  |144.0000                                |
|2.  394                 |144.0134                                |
|3.  689                 |144.7000                                |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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