RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           3 November 2005
      DOCKET NUMBER:  AR20050004111


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Thomas D. Howard              |     |Chairperson          |
|     |Mr. John Infante                  |     |Member               |
|     |Ms. Carmen Duncan                 |     |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 general, under honorable
conditions discharge (GD) of 3 October 1967 be upgraded to an honorable
discharge (HD).

2.  The applicant states, in effect, it has been over 37 years since he
received the GD in question for a relatively minor offense (unauthorized
use of marijuana).  He claims that in the interim, he has served in the New
York Army National Guard (NYARNG) and the United States Army Reserve (USAR)
for a combined period of more than 24 years.

3.  The applicant provides three separation documents (DD Forms 214) in
support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 3 October 1967.  The application submitted in this case is
dated
1 March 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’s record shows he enlisted in the Regular Army and
entered active duty on 30 December 1965.  He was trained in, awarded, and
served in military occupational specialty (MOS) 43E (Parachute Rigger).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows, in
Item 33 (Appointments and Reductions), that he was promoted to specialist
four (SP4) on 22 March 1967, and that this is the highest rank he attained
while serving on active duty.  Item 33 further shows he was reduced to
private first class (PFC) for cause on 13 July 1967.  Item 41 (Awards and
Decorations) shows that during his active duty tenure, he earned the
Parachutist Badge and Sharpshooter Qualification Badge with Rifle Bar.  His
record documents no acts of valor, significant achievement, or service
warranting special recognition.

5.  The applicant’s disciplinary history includes his acceptance of
nonjudicial punishment (NJP) under the provisions of Article 15 of the
Uniform Code of Military Justice (UCMJ) on 13 July 1967, for disobeying the
lawful command of a superior commission officer.  His punishment for this
offense included a reduction to PFC, forfeiture of $28.00, 14 days of
restriction, and 7 days of extra duty.  The applicant did not appeal this
NJP action.

6.  On 12 July 1967, the applicant was informed by his unit commander that
action was being initiated to separate him for unfitness under the
provisions of Army Regulation 635-212 based on his unauthorized use of
marijuana.

7.  On 25 July 1967, the applicant consulted with legal counsel and was
advised of the basis to the contemplated separation action and its effects,
and of the rights available to him.  Subsequent to receiving this legal
counseling, the applicant elected to waive his right to have his case
considered by a board of officers and his right to a personal appearance
before a board of officers.  He also elected not to submit a statement in
his own behalf.

8.  The separation authority approved the applicant’s separation under the
provisions of Army Regulation 635-212, by reason of unfitness, and directed
he receive a GD.  On 3 October 1967, the applicant was discharged
accordingly.  The DD Form 214 he was issued at the time confirms he held
the rank of PFC and had completed a total of 1 year, 9 months and 4 days of
active military service.  It also shows that during his active duty tenure,
he received no individual awards or decorations.

9.  The applicant provides DD Forms 214 that document two additional
periods of active duty service he completed while a member of the NYARNG
and USAR.  The first was for an 8 month and 23 day period of active duty
service he completed between 13 February and 5 November 1997; and the
second documents a 4 month and 8 day period of active service he completed
between 15 March and 8 August 2003.  Both these documents were issued based
on his completion of the required period of active duty service and both
characterized his service as honorable.  The last DD Form 214 he was issued
on 8 August 2003 shows he held the rank of first sergeant (1SG) at that
time.

10.  The record gives no indication that the applicant requested an upgrade
of his discharge from the Army Discharge Review Board within its 15-year
statute of limitations.

11.  Army Regulation 635-212, in effect at the time, set forth the basic
authority, established the policy, and prescribed the procedures for
separating members for unfitness.  Although an HD or GD could be issued
under special circumstances, an undesirable discharge (UD) was normally
considered appropriate for members separating under these provisions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to upgrade his GD to an HD and the supporting
documents he submitted were carefully considered.  However, the factors
presented are not sufficiently mitigating to warrant an upgrade of his
discharge at this late date.

2.  Although the applicant is to be congratulated on his subsequent service
in the NYARNG and USAR, this service alone is not sufficiently mitigating
to support granting the requested relief.  Further, his continued service
appears to confirm that his GD had very little adverse impact on his
ability to continue his military service.

3.  The evidence of record confirms that the applicant’s discharge
processing was accomplished in accordance with the applicable regulation in
effect at the time.  The evidence of record confirms he was discharged by
reason of unfitness based on his unauthorized use of an illegal drug
(marijuana).  His overall satisfactory record resulted in his receiving a
GD instead of an UD, which was normally considered appropriate for members
separated by reason of unfitness.

4.  The applicant’s illegal use of drugs clearly diminished the quality of
his service below that meriting an HD.  Further, the GD he received
accurately reflected his overall record of service at the time.  Therefore,
notwithstanding his subsequent outstanding record of service in the Reserve
Components, it would not be appropriate to upgrade his discharge at this
late date.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 3 October 1967.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 2 October 1970. However, he failed to 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

___TDH__  ___JI  __  ___CD __  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.




            ____Thomas D. Howard   ___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050004111                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/11/03                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1967/10/03                              |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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