RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           22 December 2005
      DOCKET NUMBER:  AR20050008534


      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. Ted S. Kanamine               |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Ms. Jeanette B. McPherson         |     |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) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he would like his discharge
upgraded to an HD.

3.  The applicant provides his separation document (DD Form 214) in support
of his operation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 25 September 1967.  The application submitted in this case
was received on 1 June 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 was inducted into the Army and entered
active duty on 9 December 1966.  He was trained in, awarded and served in
military occupational specialty (MOS) 91A (Medical Corpsman), and the
highest rank he attained while serving on active duty was private first
class (PFC).

4.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.  It does reveal a
disciplinary history that include his acceptance of nonjudicial punishment
(NJP) under the provisions of Article 15 of the Uniform Code of Military
Justice (UCMJ), for being absent without leave (AWOL) from 12 through 15
June 1967.

5.  On 25 August 1967, his unit commander notified the applicant he was
being recommended for separation under the provisions of Army Regulation
635-212, by reason of unfitness.  The unit commander’s reason for taking
the action was the applicant’s admitted use of drugs, and his
acknowledgment that he would continue to use drugs regardless of his duty
assignment.
6.  On 14 September 1967, the applicant consulted with legal counsel and
was advised of the basis for the contemplated separation action, its
effects, and of the rights available to him.  Subsequent to this
counseling, the applicant waived his right to consideration of his case by
a board of officers, his right to a personal appearance before a board of
officers, and his right to representation by counsel. He also elected not
to submit a statement in his own behalf.

7.  On 19 September 1967, the separation authority approved the applicant’s
separation under the provisions of Army Regulation 635-212, and directed he
receive an Undesirable Discharge (UD).  On 25 September 1967, the applicant
was discharged accordingly.

8.  On 3 November 1981, the Army Discharge Review Board (ADRB) voted to
upgrade the applicant’s discharge to a GD.  However, it found the authority
and reason for his discharge was proper and equitable.

9.  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, which included drug abuse.  An UD was
normally considered appropriate for members separating under these
provisions.

10.  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 evidence of record confirms the applicant’s separation processing
was accomplished in accordance with the applicant regulation.  All
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout the separation process.

2.  The ADRB voted to upgrade the applicant’s discharge to a GD based on
mitigating factors surrounding the applicant’s use of drugs prior to entry
into the service, and his voluntary admission that he was using drugs.
However, it also found that the authority and reason for his discharge was
proper and equitable.  The applicant’s use of illegal drugs clearly
diminished the quality of his service below that meriting an HD.
Therefore, it would not be appropriate to upgrade the applicant’s discharge
beyond the GD already granted by the ADRB.

3.  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.

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 3 November 1981.
As a result, the time for him to file a request for correction of any error
injustice to this Board expired on 2 November 1984.  He failed to 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

___TSK _  __RLD___  __JBM__  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.




            ____Ted S. Kanamine______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050008534                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/12/22                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1967/09/25                              |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |Unfitness-Drug Abuse                    |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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