RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            04 APRIL 2006
      DOCKET NUMBER:   AR20050008804


      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. James Anderholm               |     |Chairperson          |
|     |Mr. Jose Martinez                 |     |Member               |
|     |Ms. Jeanette McCants              |     |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 undesirable discharge be upgraded to a
medical discharge.

2.  The applicant states that he was an upstanding combat soldier who
fought in Vietnam and received the Bronze Star Medal.  He goes on to state
that he was not afforded medical attention before his discharge and he
desires to be granted all of his benefits.

3.  The applicant provides a handwritten third-party letter of support and
a letter from the Department of Veterans Affairs (VA) indicating that the
applicant has completed the intensive 4-week substance abuse program and is
presently attending the aftercare program and awaiting acceptance to the
Post-Traumatic Stress Disorder (PTSD) program.  He also provides copies of
his VA treatment records.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 24 March 1975.  The application submitted in this case is dated
26 May 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.  He enlisted in Baltimore, Maryland on 3 June 1971 for a period of 2
years.  He completed his training and was transferred to Vietnam on 4
January 1972 for duty as a light weapons infantryman.  He served in Vietnam
until 29 June 1972, when he was transferred to Fort Hood, Texas.

4.  On 30 November 1972, while serving in the pay grade of E-4, he
reenlisted for a period of 3 years and assignment to Fort Meade, Maryland.
He was reassigned to Fort Meade on 7 December 1972.

5.  On 21 February 1973, nonjudicial punishment (NJP) was imposed against
him for being absent without leave (AWOL) from 12 February to 20 February
1973.  His punishment consisted of a reduction to the pay grade of E-3, a
forfeiture of pay, extra duty and restriction.

6.  On 5 April 1973, NJP was imposed against him for being AWOL from 2
April to 4 April 1973.  His punishment consisted of a reduction to the pay
grade of E-2 (suspended for 90 days), a forfeiture of pay, extra duty and
restriction.  On 12 April 1973, the commander vacated the suspended
reduction and the applicant was reduced to the pay grade of E-2.

7.  On 12 April 1973, he also had NJP imposed against him for disobeying a
direct order from a superior commissioned officer (his commander).  His
punishment consisted of a reduction to the pay grade of E-1.

8.  On 17 July 1973, NJP was imposed against him for three specifications
of failure to go to his appointed place of duty.  His punishment consisted
of a reduction to the pay grade of E-1 (suspended for 30 days), a
forfeiture of pay and extra duty.

9.  On 5 December 1973, he was convicted by a special court-martial of
being AWOL from 12 October to 24 October, from 30 October to 5 November
1973 and for breaking arrest on 29 October 1973.  He was sentenced to
confinement at hard labor for 4 months and a forfeiture of pay.

10.  He was transferred to the Retraining Brigade at Fort Riley, Kansas, to
serve his confinement and remained there until 12 March 1974, when he was
transferred to Fort Hood, Texas.

11.  On 11 September 1974, NJP was imposed against him for being AWOL from
3 September to 4 September 1974.  His punishment consisted of a forfeiture
of pay, extra duty and restriction.

12.  On 24 September 1974, NJP was imposed against him for the wrongful
possession of marijuana.  His punishment consisted of a reduction to the
pay grade of E-1 (suspended for 4 months), a forfeiture of pay, extra duty
and restriction.  On 21 October 1974, the imposing commander vacated the
suspended reduction.

13.  The applicant underwent a mental status evaluation on 16 January 1975
and was deemed to be mentally responsible, able to distinguish right from
wrong and able to adhere to the right.

14.  The applicant also underwent a physical and mental examination which
failed to reveal any defects which would have contributed to his
misconduct.

15.  The applicant again went AWOL from 24 October to 25 October and
23 November to 25 November 1974.  He received several counselings from his
chain of command regarding his frequently being absent from his place of
duty, disobeying direct orders and failure to respond to counseling.

16.  On 25 November 1974, the applicant’s commander notified him that he
was initiating action to separate him from the service under the provisions
of Army Regulation 635-200, chapter 13, for unfitness due to his frequent
involvement in incidents of a discreditable nature with authorities.

17.  On 12 December 1974, after consulting with counsel, the applicant
waived all of his rights and elected not to submit a statement in his own
behalf.

18.  On 3 March 1975, the appropriate authority approved the recommendation
for discharge and directed that he be furnished an Undesirable Discharge
Certificate.

19.  Accordingly, he was discharged under other than honorable conditions
on 24 March 1975, under the provisions of Army Regulation 635-200, chapter
13, for unfitness due to frequent involvement in incidents of a
discreditable nature with authorities.  He had served 3 years, 3 months and
28 days of total active service and had 160 days of lost time due to AWOL
and confinement.  He was awarded the National Defense Service Medal, the
Vietnam Service Medal with one bronze service star, the Republic of Vietnam
Campaign Medal and the Combat Infantryman Badge.  At the time of his
discharge he was informed in writing of the procedures to apply to the Army
Discharge Review Board (ADRB) for an upgrade of his discharge.

20.  The applicant applied to the ADRB on 21 November 1978 requesting that
his discharge be upgraded to honorable.  He cited to that Board that his
discharge was drug related at the time and since he had been in treatment
for 2 years, he believed that he deserved an upgrade to an honorable
discharge.  He was granted a personal appearance before that board, with
his counsel, on              14 January 1980.  After considering the
evidence and testimony in the case the ADRB determined that the applicant’s
discharge was both proper and equitable under the circumstances.  The ADRB
denied his request on 29 January 1980.


21.  Army Regulation 635-200, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  Chapter 13 established
policy and procedures for separating personnel for unfitness.  Specific
categories included minor infractions, a pattern of misconduct, involvement
in frequent incidents of a discreditable nature with civil and military
authorities, and commission of a serious offense.  A discharge under other
than honorable conditions was normally considered appropriate.

22.  Chapter 14 of that regulation dealt with separation for various types
of misconduct, which included drug abuse, and provides that individuals
identified as drug abusers may be separated prior to their normal
expiration of term of service.  A discharge under other than honorable
conditions was normally considered appropriate; however, the discharge
authority could direct an honorable or general discharge if such was
merited by the member’s overall record.

23.  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 administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate considering all of the available facts of the case.

3.  The applicant's contentions and supporting documents have been noted by
the Board; however, they are not supported by either the evidence submitted
with his application or the evidence of record.  The applicant received
medical, physical and mental examinations prior to his discharge and was
cleared for separation at the time.  The applicant has submitted no
evidence to show that he was unfit for separation or that he warranted
separation by reason of physical disability.

4.  While the applicant was punished on one occasion for the wrongful
possession of marijuana, that in itself did not constitute a basis to label
him as a drug abuser anymore than one alcohol related incident would serve
as a basis to label someone as an alcoholic or abuser of alcohol and direct
them to be placed into a treatment program.

5.  Accordingly, his overall record of service does not rise to the level
of honorable service when considering his repeated acts of misconduct and
the overall nature of his performance during the period in question.

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 January 1980.
As a result, the time for the applicant to file a request for correction of
any error injustice to this Board expired on 28 January 1983.  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

___JA___  ___JM __  ___JM __  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 Anderholm________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050008804                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060404                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1975/03/24                              |
|DISCHARGE AUTHORITY     |AR635-200/CH13 . . . . .                |
|DISCHARGE REASON        |UNFIT                                   |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |583/A51.00                              |
|1.144.5000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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