RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          10 August 2004
      DOCKET NUMBER:  AR2004100208


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Gail J. Wire                  |     |Chairperson          |
|     |Ms. Karen A. Heinz                |     |Member               |
|     |Mr. Paul M. Smith                 |     |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 bad conduct discharge (BCD) be upgraded
to a general discharge.

2.  The applicant states, in effect, that he had a drug problem and was
admitted to a detoxification program for only 1½ days before being returned
to his unit.  He goes on to state that his problem got much worse and
believes that had he been given some serious help, he could have overcome
his addiction or gotten out of the Army under chapter 10.  However, he was
not given the same choices and he believes that he should receive an
upgrade of his discharge.

3.  The applicant provides

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 8 March 1979.  The application submitted in this case is dated
26 October 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 initially enlisted in Buffalo, New York, on 22 January
1975, for a period of 3 years, training as a multi-channel equipment
operator, and assignment to the Berlin Brigade.  He completed his training
and was transferred to Germany on 13 July 1975; however, he could not be
assigned to the Berlin Brigade and was assigned to a signal company in the
3rd Armored Division.  He waived that portion of his enlistment contract
regarding assignment to the Berlin Brigade on 14 July 1975.  He was
advanced to the pay grade of E-3 on 7 August 1975.

4.  In March 1976, he was treated for improper heroin use and was enrolled
in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  He
was deemed a rehabilitation success on 25 June 1976.

5.  On 20 July 1976, nonjudicial punishment was imposed against him for
failure to go to his place of duty.  His punishment consisted of a
reduction to the pay grade of E-2 (suspended for 90 days) and extra duty.

6.  On 21 July 1976, the applicant was referred to the 97th Detoxification
Ward for heroin withdrawal.  He was again enrolled in the ADAPCP and on 2
August 1976, he was apprehended for possession of heroin and a hypodermic
needle.  He was again admitted to the detoxification ward for heroin
withdrawal and on 19 August 1976, was declared a rehabilitation failure.

7.  On 24 February 1977, he was convicted by a special court-martial of
stealing a leather coat from the post exchange, wrongful possession of
heroin, wrongful possession of a hypodermic syringe, the wrongful purchase
of five quarts of whiskey and four cartons of cigarettes, the wrongful
possession of an altered ration card and being absent without leave (AWOL)
from 17 November to 23 November 1976.  He was sentenced to confinement at
hard labor for 30 days, reduction to the pay grade of E-1, a forfeiture of
pay and a BCD.

8.  On 29 September 1978, the United States Court of Military Appeals
denied the applicant's petition for a grant of review of his case.

9.  On 6 October 1978, orders were published at Fort Dix, New Jersey,
indicating that the findings and sentence as approved by the court-martial
convening authority had been affirmed and directed that the sentence be
executed.

10.  Accordingly, he was discharged under other than honorable conditions
on 8 March 1979, pursuant to a duly reviewed and affirmed court-martial
conviction. He had served 4 years and 19 days of total active service and
had 28 days of lost time due to AWOL.

11.  The applicant applied to the Army Discharge Review Board (ADRB) for an
upgrade of his discharge on 28 March 1980.  He cited essentially the same
reasons to that board that he has cited to this Board.  The ADRB reviewed
his entire record of service and determined that there was no evidence to
show that he had been improperly or inequitably discharged.  The ADRB
denied his request on 17 July 1981.

12.  Title 10, United States Code, section 1552, the authority under which
this Board acts, provides, in pertinent part, that the Board is not
empowered to set aside a conviction.  Rather it is only empowered to change
the severity of the sentence imposed in the court-martial process and then
only if clemency is determined to be appropriate.  Clemency is an act of
mercy, or instance of leniency, to moderate the severity of the punishment
imposed.

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 U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (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.

14.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge
for the good of the service in lieu of trial by court-martial.  A condition
of submitting such a request is that the individual concerned must admit
guilt to the charges against them or of a lesser included offense which
authorizes the imposition of a bad conduct or dishonorable discharge and
they must indicate that they have been briefed and understand the
consequences of such a request as well as the discharge they might receive.
 A discharge under other than honorable conditions is normally considered
appropriate.

DISCUSSION AND CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offenses
charged.  Conviction and discharge were effected in accordance with
applicable law and regulations, and the discharge appropriately
characterizes the misconduct for which the applicant was convicted.

2.  The type of discharge directed and the reasons therefore appear to be
appropriate considering the available facts of the case.

3.  The applicant’s contentions have been noted by the Board.  However,
they are not sufficiently mitigating to warrant relief when compared to the
seriousness of his offense and his overall undistinguished record of
service.
4.  Additionally, the applicant had the option of requesting a discharge
under chapter 10, in lieu of trial by court-martial, once charges were
preferred against him.  However, he was not guaranteed such a discharge
because the decision to accept his request was up to the court-martial
convening authority at the time.

5.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, 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 should have discovered the alleged error or
injustice now under consideration on 17 July 1981; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 16 July 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

__gjw___  __kah___  __pms___  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.



                                  Gail J. Wire
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100208                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040810                                |
|TYPE OF DISCHARGE       |(BCD)                                   |
|DATE OF DISCHARGE       |1975/01/22                              |
|DISCHARGE AUTHORITY     |spcm . . . . .                          |
|DISCHARGE REASON        |Spcm                                    |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |675/a68.00                              |
|1.144.6800              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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