RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          18 August 2005
      DOCKET NUMBER:  AR20050001013


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Vick                    |     |Chairperson          |
|     |Mr. Ronald Weaver                 |     |Member               |
|     |Mr. Robert Rogers                 |     |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 under other than honorable
conditions be upgraded to general.

2.  The applicant states he received an honorable discharge for his first
enlistment and received the Good Conduct Medal, a recommendation for award
of the Army Commendation Medal which was downgraded to a certificate of
appreciation, and a second certificate of appreciation.  He contends he
encountered difficulty during his second enlistment while serving in
Germany and that youth, inexperience, and being overseas for the first time
led to his difficulties with the military and his personal life.  He points
out that he has been out of the Army for 20 years and never been convicted
of a felony or served time in jail.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty); orders for the Good Conduct Medal;
a DA Form 638 (Recommendation for Award), dated 29 September 1980; a
disapproval for award, dated 23 March 1981; and two certificates of
achievement.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 11 January 1984.  The application submitted in this case is
dated 11 January 2005.

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 was born on 3 March 1962.  He enlisted in the U.S. Army
Reserve (USAR) on 7 May 1979 for a period of 6 years.  He was ordered to
active duty on 27 July 1979 for training, completed One Station Unit
Training in military occupational specialty 13B (cannoneer), and was
released from active duty on 20 October 1979.  He was ordered to active
duty on 27 March 1980 for a period of 21 months and 6 days.  On 20 July
1981, the applicant enlisted in the Regular Army for a period of 3 years.
He transferred to Germany on 8 December 1981.

4.  On 5 August 1983, nonjudicial punishment was imposed against the
applicant for using marijuana in the hashish form.  His punishment
consisted of a reduction to E-3, a forfeiture of pay, restriction, and
extra duty.

5.  On 16 November 1983, charges were preferred against the applicant for
using and distributing marijuana in the hashish form.  Trial by special
court-martial was recommended.

6.  On 30 November 1983, the applicant consulted with counsel and requested
discharge for the good of the service under the provisions of Army
Regulation 635-200, chapter 10.  He indicated in his request that he
understood he might be discharged under conditions other than honorable and
furnished an other than honorable discharge; that he might be ineligible
for many or all benefits administered by the Veterans Administration; that
he would be deprived of many or all Army benefits; and that he might be
ineligible for many or all benefits as a veteran under both Federal and
State law.  He also acknowledged that he might expect to encounter
substantial prejudice in civilian life because of an Other Than Honorable
Discharge.  He elected not to make a statement in his own behalf.

7.  On 13 December 1983, the separation authority approved the applicant's
request for discharge and directed that he be furnished a discharge under
other than honorable conditions.

8.  The applicant returned to the United States on 10 January 1984.

9.  Accordingly, the applicant was discharged under other than honorable
conditions on 11 January 1984 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 served 4 years and 9 days of creditable active service.

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

11.  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.
12.  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.

DISCUSSION AND CONCLUSIONS:

1.  Age is not a sufficiently mitigating factor.  Although the applicant
was 17 years old when he enlisted in the USAR, he successfully completed
One Station Unit Training and was almost 20 years old when he was
transferred to Germany.

2.  Good post service conduct alone is not a basis for upgrading a
discharge.

3.  The applicant’s voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial,
was administratively correct and in conformance with applicable
regulations.  He had an opportunity to make a statement on his own behalf
at the time he requested discharge and failed to do so.

4.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.

5.  Since the applicant's record of service included drug related offenses
and one nonjudicial punishment for using marijuana, his record of service
was not satisfactory.  Therefore, the applicant's record of service is
insufficiently meritorious to warrant a general discharge.

6.  Records show the applicant should have discovered the alleged injustice
now under consideration on 11 January 1984; therefore, the time for the
applicant to file a request for correction of any injustice expired on 10
January 1987.  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

JV_____  RW_____  RR______  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.




            ___James Vick_________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050001013                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050818                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19840111                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 10                   |
|DISCHARGE REASON        |For the good of the service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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