RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 September 2005
      DOCKET NUMBER:  AR20050002537


      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. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Hise                    |     |Chairperson          |
|     |Mr. Thomas O'Shaughnessy          |     |Member               |
|     |Mr. Patrick McGann                |     |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 his undesirable discharge be upgraded to a
general discharge.  He also requests that the Letter of Commendation he
received from the Combat Support Company, 2nd Battalion, 16th Infantry, 1st
Infantry Division in March/April 1973 be added to his DD Form 214 (Armed
Forces of the United States Report of Transfer or Discharge).

2.  The applicant states that his military experience has been instrumental
to his success as a member of society.  He is proud of his military service
and he is very sorry for his actions which led to his discharge under other
than honorable conditions.  He was under a considerable amount of stress
while serving in Vietnam, but he realizes that his actions were wrong.  He
wants to have his discharge status to be changed because he is proud of
serving his country.

3.  The applicant provides two discharge documents; a supplemental letter;
his letter applying for a position at the North Western Energy Butte
Division; and five character references.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 30 August 1973.  The application submitted in this case is
dated 9 February 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 limitations 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 the Regular Army on 22 October 1963
for a period of 3 years.  He completed the required training and was
awarded military occupational specialty 63C (Track Vehicle Mechanic).  He
served in Germany and was honorably released from active duty on 4 October
1966.  On the following date, he was transferred to the U.S. Army Reserve
to complete his Reserve obligation.

4.  The applicant enlisted in the Regular Army again on 10 May 1971 for a
period of 3 years.
5.  On 10 June 1971, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice for being absent from his
unit.  His punishment consisted of a forfeiture of $50.00 pay per month for
2 months and restriction to the company area for a period of 21 days.

6.  The applicant was assigned to Vietnam on 25 August 1971.  He was
promoted to specialist four on 7 September 1971.  He departed Vietnam on
17 April 1972 and was reassigned to the Combat Support Company,
2nd Battalion, 16th Infantry at Fort Riley, Kansas.

7.  Item 44 (Time Lost under Section 972, Title 10, United States Code and
Subsequent to Normal Date ETS) on the applicant's DA Form 20 (Enlisted
Qualification Record) shows he was absent without leave (AWOL) from 23 May
1972 through 26 June 1972.  There is no record of nonjudicial punishment
for this period of AWOL.

8.  On 15 January 1973, the applicant was convicted by a summary court-
martial of wrongfully possessing 5 ounces, more or less, of marijuana.  He
was sentenced to a reduction to the grade of private E-1, a forfeiture of
$150.00 pay per month for one month and to perform extra duty for 21 days.
The execution of that portion of the sentence adjudging the reduction to
the grade of private E-1 and forfeiture in excess of $150.00 per month for
one month was suspended until 18 April 1973.

9.  The applicant's personnel records contain a Letter of Commendation
dated 2 March 1973 from an Executive Officer at the Combat Support Company,

2nd Battalion, 16th Infantry at Fort Riley, Kansas.

10.  The applicant underwent a psychiatric evaluation on 26 April 1973.
The evaluation indicated that the applicant could not be rehabilitated to
the extent that he could be an effective Soldier and was strongly
recommended for administrative separation under the provisions of Army
Regulation, paragraph 5b(2) for unsuitability.

11.  A Criminal Investigation Division (CID) Report of Investigation dated
14 June 1973 revealed that the applicant was investigated for wrongful
possession of a controlled substance (marijuana) and wrongful possession of
a controlled substance (dangerous drugs).

12.  On 26 June 1973, charges were preferred against the applicant for
wrongfully having in his possession 0.42 grams, more or less of marijuana.


13.  On 10 July 1973, the applicant consulted with legal counsel and
voluntarily requested discharge for the good of the service under the
provisions of Army Regulation 635-200, chapter 10.  In doing so, he
admitted guilt to the offense charged and acknowledged that he might
encounter substantial prejudice in civilian life and that he might be
ineligible for many or all Army benefits administered by the Veterans
Affairs (VA) if an undesirable discharge was issued.  He acknowledged that
he had not been subjected to coercion with respect to this request for
discharge and had been advised of the implications that were attached to
it.  He also acknowledged that, if this request for discharge was accepted,
he could be discharged under other than honorable conditions and furnished
an Undesirable Discharge Certificate.

14.  The applicant submitted statements in support of his request for
discharge.  He stated, in effect, that his working performance was never
low because of his smoking marijuana.  He felt that as long as he could get
up and work, there was no reason to stop.  He stated that he had been
recommended for a discharge under Army Regulation 635-212 before he went to
Germany and was removed from maintenance two months before he left.  When
he returned to the States, he received a letter from his Executive Officer
for his work performance.  His commanding officer at the time threw away
the paperwork for a discharge.  He further stated that there were many guys
discharged under Army Regulation 635-212 and received a general discharge.
He states that he does not deserve an undesirable discharge.

15.  On 16 August 1973, the separation authority approved the discharge
under the provisions of Army Regulation 635-200, chapter 10 with issuance
of an Undesirable Discharge Certificate.

16.  The applicant's DA Form 20 shows he was AWOL from 17 August 1973
through 21 August 1973.  There is no record of nonjudicial punishment for
this period of AWOL.

17.  The applicant was discharged on 30 August 1973 under the provisions of
Army Regulation 635-200, chapter 10 for the good of the service with an
undesirable discharge.  He had completed 2 years and 2 months and 11 days
of active military service during the period under review.  He had 40 days
of lost time due to AWOL.

18.  The applicant's DD Form 214 for the period ending 30 August 1973 shows
the Vietnam Service Medal, one Overseas Bar and the Republic of Vietnam
Campaign Medal with Device (1960).

19.  On 5 June 1974, the Army Discharge Review Board (ADRB) denied the
applicant's request for an upgrade of his discharge to general.

20.  On 6 August 1984, the ADRB again denied the applicant's request for an
upgrade.

21.  The applicant submitted character references in support of his claim.
In effect, these individuals stated that they had known the applicant for a
number of years and described him as being competent, dependable, honest, a
good worker and a person who works well with others.

22.  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 an undesirable discharge.

23.  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.

24.  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 (Army Regulation 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 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.

25.  Army Regulation 635-5 (Separation Documents) provides instructions for
the preparation of the DD Form 214.  It states, in pertinent part, that
decorations, medals, citations and campaign ribbons awarded and authorized
will be listed in the appropriate item of the DD Form 214.  However, Army
Regulation 600-8-22 provides that certificates of achievement or
certificates and other documents recognizing periods of faithful service or
acts which do not meet the criteria for decorations will be distributed to
the individual’s Military Personnel Records Jacket and Official Military
Personnel File per Army Regulation 600-8-104 (Military Personnel
Information Management/Records).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, for the good of the service, to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.  There is no indication that the
request was made under coercion or duress.

2.  The applicant's service record shows he received an Article 15 for
being absent from his unit, a summary court-martial for possessing
marijuana, and was AWOL for a period of 40 days.

3.  Considering the seriousness of the applicant's offense and his overall
record, it appears that his service was appropriately characterized.

4.  The applicant's character references concerning his good conduct are
noted; however, these factors are insufficiently mitigating to warrant an
upgrade in this case.

5.  The applicant's request to add his Letter of Commendation to his DD
Form 214 is noted.  However, documents recognizing periods of faithful
service or acts which do not meet the criteria for decorations will be
distributed to the individual’s military personnel record.  Since his
Letter of Commendation is not an authorized decoration to be reflected on
his DD Form 214, there is no basis for granting the applicant's request.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 August 1984, the date of the ADRB
review; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 5 August 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

JH______  TO______  PM______  DENY APPLICATION

OARD 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 Hise____________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002537                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050920                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19730830                                |
|DISCHARGE AUTHORITY     |AR635-200, chapter 10                   |
|DISCHARGE REASON        |For the good of the service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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