RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          25 January 2005
      DOCKET NUMBER:  AR2004105254


      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. Rosa M. Chandler              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. James E. Anderhom             |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 undesirable discharge (UD)
be upgraded to a fully honorable discharge.

2.  The applicant states, in effect, that while stationed at Camp Ratcliff,
Republic of Vietnam (RVN), he admitted that a small amount of marijuana
discovered in a pipe contained in his web gear belonged to him.  He was
confined in the stockade and four sergeants beat him, called him a doper,
and told him to straighten up.  He went back to his unit and he was given
light duty.  Psychiatrists in Da Nang and Qui Nhon, RVN evaluated him and
found nothing wrong with him.  Court-martial charges were preferred against
him and he consulted with a legal representative and was told he could go
through a general court-martial or he could go home, if he requested
separation for the good of the service, in lieu of trial by court-martial.
He was also told that his discharge would be upgraded in 6 months.

3.  The applicant also states that his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge) does not reflect his service
in Germany.

4.  The applicant provides a copy of his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 22 November 1970.  The application submitted in this case is
dated 4 March 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 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.  On 16 January 1969, the applicant enlisted in the Regular Army for a
period of 3 years.  He completed the training requirements and he was
awarded military occupational specialty MOS 64B (Light Vehicle Driver).
4.  The applicant served in Germany from 29 September 1969 to 7 May 1970
when he was transferred to the RVN.  He served in Vietnam from 20 June to
21 November 1970 with the 88th Transportation Company when he returned to
Fort Lewis, Washington for separation processing.  The applicant's DD Form
214, Item 24 (Foreign and or Sea Service) shows both periods of Foreign
Service (Germany and RVN) equaling 1 year, 0 months and 11 days.

5.  While assigned to Vietnam, NJP was imposed against the applicant on two
separate occasions.  On 11 October 1970, NJP was imposed against him for
disobeying a lawful order given by a noncommissioned officer (NCO) and for
being disrespectful in language towards an NCO on 10 October 1970.  On
15 October 1970 NJP, he was imposed against him for being absent from his
place of duty from 1530 to1800 hours on 11 October 1970.

6.  On 5 November 1970, the applicant underwent a medical examination that
determined he was qualified for separation.

7.  On 15 November 1970, the applicant underwent a psychiatric evaluation.
The Psychiatric Certificate shows he was pending court-martial for
possession of marijuana and that he was evaluated as part of the separation
process.  The applicant's chain of command stated that the applicant's
major problem was he demonstrated a lack of respect for authority.  The
examining psychiatrist noted that during the evaluation interview, the
applicant spoke clearly and coherently with no evidence of a thinking
disorder or any other signs of psychosis.  The examining psychiatrist also
noted the applicant stated that he had no desire to improve his performance
or to remain in the Army.  The psychiatrist diagnosed the applicant with a
personality disorder manifested by drug abuse.  He was also determined to
be qualified for separation under the provisions of chapter 10, Army
Regulation 635-200.  The applicant was determined to have no disqualifying
defects to warrant disposition through medical channels.  He was mentally
responsible; able to distinguish right from wrong and adhere to the right;
and he had the mental capacity to understand and participate in board
proceedings.  The applicant was psychiatrically cleared for any action
deemed appropriate by his chain of command, including separation.

8.  The applicant’s record does not contain all the facts and circumstances
surrounding the discharge process.  However, the applicant's record
contains a properly constituted DD Form 214, which shows he was discharged
under the provisions of chapter 10, Army Regulation 635-200, for the good
of the service, in lieu of trial by court-martial with a UD on 22 November
1970.  He had completed
1 year, 10 month and 7 days of creditable active military service and he
had no recorded lost time.
9.  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 is normally considered
appropriate.  However, at the time of the applicant's separation the
regulation provided for the issuance of a UD.

10.  On 11 January 1978, the Army Discharge Review Board denied the
applicant’s request for an upgrade of his discharge.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The available records show the applicant was discharged under the
provisions of chapter 10, AR 635-200, for the good of the service.  Some of
the facts and circumstances surrounding the discharge process are missing.
However, his record shows the commission of several offenses, to include
possession of marijuana, which were punishable under the Uniform Code of
Military Justice (UCMJ) with a punitive discharge.  He would have then been
required to consult with defense counsel and would have been required to
sign a statement indicating that he had been informed that he could receive
a UD and the ramifications of receiving such a discharge.  He would have
voluntarily requested discharge to avoid trial by court-martial.  In doing
so, he would have admitted guilt to the stipulated offense(s) under the
UCMJ.  The Board presumes regularity in the discharge process.  The
applicant has provided no information that would indicate the contrary.

2.  The applicant’s conduct was inconsistent with the Army’s standards for
acceptable personal conduct and his overall quality of service was not so
meritorious as to warrant an upgrade of his discharge.
3.  The applicant's DD Form 214, Item 24 appropriately shows he has
completed 1 year, 0 months and 11 days of Foreign Service.  This service
includes his service in both Germany and the RVN.

4.  The available evidence does not show the applicant was ever abused or
mistreated by anyone, to include his superiors.  The applicant has provided
no evidence to the contrary.

5.  The United States Army does not have, nor has it ever had, a policy to
automatically upgrade discharges or to accept requests for upgrade after a
certain amount of time.  Each case is decided on its own merits when an
applicant submits a DD Form 149 (Application for Correction of Military
Record) requesting a change in discharge.  Changes may be warranted if it
is determined that the characterization of service or the reason(s) for
discharge, or both, were improper or inequitable.  The applicant has failed
to provide evidence to make such a determination.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 11 January 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 10 January 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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.



                                  Kathleen A. Newman
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004105254                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050125                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |19701122                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 10                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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