RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          6 December 2005
      DOCKET NUMBER:  AR20050003253


      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:

|     |Mr. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Donald W. Steenfott           |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 general discharge be upgraded to
honorable.

2.  The applicant states that he served his country honorably for over 2
years as a patriot to his country.  He goes on to state that he signed up
before he got drafted and requested to serve his tour of service in Vietnam
after his training.  He also states that he believed in our government
system and the Vietnam War at the time, but it was wrong.  However, he
still loves our system.

3.  The applicant provides no additional supporting documents with his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 14 September 1971.  The application submitted in this case is
dated 23 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 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.  He enlisted in Cleveland, Ohio on 6 August 1969, for a period of 2
years.  He completed his basic combat training at Fort Campbell, Kentucky,
and his advanced individual training (AIT) at Fort Belvoir, Virginia.

4.  Upon completion of his AIT he was transferred to a signal company in
Goeppingen, Germany, on 7 January 1970, for duty as a power generator
equipment operator/mechanic.  He was advanced to the pay grade of E-4 on
29 August 1970.

5.  On 14 November 1970, nonjudicial punishment (NJP) was imposed against
him for possessing stolen license plates and wrongfully operating an
uninsured and unregistered privately owned vehicle.  His punishment
consisted of a reduction to the pay grade of E-3 (suspended for 3 months)
and a forfeiture of pay.
6.  On 3 March 1971, he was arrested and charged with the illegal
possession of 470 grams of marijuana in the hashish form.

7.  On 4 April 1971, NJP was imposed against him for two specifications of
failure to go to his place of duty.  His punishment consisted of a
reduction to the pay grade of E-3.

8.  On 2 June 1971, he was arrested and charged for the illegal possession
of .75 grams of hashish and 30 tabs of LSD (lysergic acid).

9.  On 3 June 1971, in addition to the drug possession charges, charges
were preferred against the applicant for disobeying a lawful order from a
superior commissioned officer, for being disrespectful towards a superior
commissioned officer and for failure to go to his place of duty.

10.  It appears based on the available evidence that the applicant
attempted to enter the Drug Amnesty Program after charges were preferred
against him and his request was denied.

11.  On 14 June 1971, he underwent a psychiatric evaluation and was
psychiatrically cleared for any administrative action deemed necessary by
the chain of command.

12.  On 13 August 1971, after consulting with counsel, the applicant
submitted a request for discharge for the good of the service in lieu of
trial by court-martial.  In his request he stated that he understood that
he may be discharged with an undesirable discharge, that he understood the
prejudice he may be subjected to as a result of such a discharge, that he
understood that he would be deprived of many or all benefits and that he
was not subjected to coercion by anyone to submit such a request.  He also
elected not to submit a statement in his own behalf.

13.  On 3 September 1971, the appropriate authority ( a major general)
approved his request and directed that he be issued an Undesirable
Discharge Certificate.

14.  Accordingly, he was transferred to Fort Dix, New Jersey, where he was
discharged under other than honorable conditions on 14 September 1971,
under the provisions of Army Regulation 635-200, chapter 10, in lieu of
trial by       court-martial.  He had served 2 years, 1 month and 9 days of
total active service.


15.  On 29 September 1972, he applied to the Army Discharge Review Board
(ADRB) for an upgrade of his discharge to a general discharge contending
that he should have received treatment for his addiction.  He was granted a
personal appearance before the ADRB on 29 March 1974 and the ADRB granted
him an upgrade to a general discharge on that date.

16.  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 indicate
that they are submitting the request of their own free will, without
coercion from anyone and 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.

17.  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 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 were no violations of any
of the applicant’s rights.

2.  After being afforded the opportunity to assert his innocence before a
trial by court-martial, he voluntarily requested a discharge for the good
of the service in hopes of avoiding a punitive discharge and having a
felony conviction on his records.

3.  Notwithstanding the subsequent actions of the ADRB to upgrade his
undesirable discharge to a general discharge, the type of discharge
directed and the reasons therefore were appropriate under the
circumstances.

4.  The applicant’s contentions have been noted.  However, they are not
sufficiently mitigating to warrant relief when compared to his
undistinguished record of service and the seriousness of his misconduct.
His service simply does not rise to the level of a fully honorable
discharge.

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 exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 29 March 1974.  As
a result, the time for the applicant to file a request for correction of
any error injustice to this Board expired on 28 March 1977.  The applicant
did not file within the ABCMR's 3-year statute of limitations and has not
provided 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

__bpi___  __dws___  __eem___  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.



                                  Bernard P. Ingold
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050003253                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051206                                |
|TYPE OF DISCHARGE       |(GD)                                    |
|DATE OF DISCHARGE       |1971/09/14                              |
|DISCHARGE AUTHORITY     |AR635-200/CH10 . . . . .                |
|DISCHARGE REASON        |GD OF SVC                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |689/A70.00                              |
|1.144.7000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]