RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 July 2006
      DOCKET NUMBER:  AR20050015793


      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. Luis Almodova                 |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Ms. Maria Troup                   |     |Member               |
|     |Mr. William F. Crain              |     |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 undesirable discharge be
upgraded to honorable.

2.  The applicant states, in effect, that after 30 years, he feels that he
has been punished long enough.

3.  In support of his request, the applicant provides a copy of his DD Form
214, Report of Separation from Active Duty; a copy of a Standard Form (SF)
93, Report of Medical History; and a copy of a SF 513, Clinical Record,
Consultation Sheet.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice that
occurred on 25 October 1972, the date of his discharge.  The application
submitted in this case is dated 16 August 2005 but was received for
processing on 1 November 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.  The applicant enlisted in the Regular Army for a period of 3 years on
25 October 1972.  The applicant successfully completed basic combat and
advanced individual training at Fort Knox, Kentucky.  On completion of
his advanced training, he was awarded the military occupational specialty
(MOS), 94B, Cook.  The applicant was assigned to Fort Sill, Oklahoma, as
a first duty station.

4.  On 9 January 1973, the applicant was advanced to the rank and pay
grade, Private First Class, E-3.  This would be highest rank and pay grade
the applicant would attain while he served on active duty.

5.  On 14 November 1973, the applicant received non-judicial punishment
under the provisions of Article 15 of the Uniform Code of Military Justice
(UCMJ)
for failing to go at the time prescribed to his appointed place of duty on
10 and 11 November 1974.  The imposed punishment was a forfeiture of $45.00
pay for one month.  The applicant did not appeal the punishment.

6.  On 9 January 1974, the applicant received non-judicial punishment under
the provisions of Article 15 of the UCMJ for unlawfully, knowingly, and
intentionally having a controlled substance, Marijuana, in his possession,
on 15 November 1973.  The imposed punishment was forfeiture of $150.00 pay,
per month for two months, reduction to the pay grade of E-2, and extra duty
for 3 hours each day for 30 days.  The applicant did not appeal the
punishment.

7.  On 29 January 1974, the applicant received non-judicial punishment
under the provisions of Article 15 of the UCMJ for failing to go at the
time prescribed to his appointed place of duty on 25 January 1974.  The
imposed punishment was a reduction to the pay grade E-1 (suspended for 90
days) and forfeiture of $50.00 pay, for one month.  The applicant did not
appeal the punishment.

8.  On 30 April 1974, the applicant received non-judicial punishment under
the provisions of Article 15 of the UCMJ for failing to go at the time
prescribed to his appointed place of duty on 20 April 1974.  The imposed
punishment was a forfeiture of $50.00 pay, for one month, and 14 days extra
duties and restriction (the extra duty and restriction were suspended for 1
month).  The applicant did not appeal the punishment.

9.  On 24 July 1974, the applicant received non-judicial punishment under
the provisions of Article 15 of the UCMJ for failing to go at the time
prescribed to his appointed place of duty on 15 and 16 July 1974.  The
imposed punishment was an $84.00 forfeiture of pay, 14 days restriction and
14 days extra duty.  The appellate action portion of the DA Form 2627 is
incomplete.   There is no evidence the applicant appealed the imposed
punishment.

10.  On 9 August 1974, the applicant received non-judicial punishment under
the provisions of Article 15 of the UCMJ for failing to go at the time
prescribed to his appointed place of duty on 5 August 1974.  The imposed
punishment was forfeiture of $60.00 pay, for one month, and a reduction to
pay grade E-2 (suspended for 30 days).  The applicant did not appeal the
punishment.

11.  On 15 August 1974, the applicant's chain of command recommended the
applicant be barred from reenlistment.  On 29 August 1974, the
recommendation was approved and the applicant was barred from reenlistment.

12.  On 27 February 1975, charges were brought against the applicant for
unlawfully, knowingly, and intentionally possessing, with intent to
distribute, a controlled substance, Marijuana (approximately 140.33 grams)
on 17 January 1975.

13.  On 17 April 1975, the applicant voluntarily requested discharge from
the Army, for the good of the service, under the provisions of Army
Regulation (AR) 635-200, Chapter 10. The applicant, in his application for
discharge, stated he understood he could request discharge because charges
had been preferred against him under the UCMJ, which authorized the
imposition of a bad conduct or dishonorable discharge.  The applicant
further stated that he was making his request for discharge of his own free
will and had not been subjected to any coercion whatsoever by any person.

14.  The applicant stated that prior to completing his request for
discharge, he had been given the opportunity to consult with counsel.
Counsel, he stated, had fully advised him of the nature of his rights under
the UCMJ.  Although he (counsel) had furnished him legal advice, the
decision to seek discharge, was his own.

15.  The applicant stated that he understood that if his discharge were
accepted, he could be discharged under other than honorable conditions and
furnished an undesirable discharge certificate.  Additionally, he stated
that he had been advised and understood the possible effects of an
undesirable discharge and that, as a result of the issuance of such a
discharge, he would be deprived of many or all Army benefits that he may be
ineligible for many or all benefits administered by the Veterans
Administration (VA) [now the Department of Veterans Affairs] and that he
may be deprived of rights and benefits as a veteran under both Federal and
State law.  The applicant stated that he understood that he could expect to
encounter substantial prejudice in civilian life because of an undesirable
discharge.

16.  On 29 April 1975, the applicant underwent a separation physical
examination in conjunction with his discharge from the Army.  The applicant
stated he was in good health.  The examining physician felt the applicant
had, "possible depression."  He was referred to mental hygiene for
evaluation of this "possible depression."  The examining psychiatrist, a
medical corps officer, opined that the applicant was reacting to and was
saddened by the possibility of getting an undesirable discharge and having
to leave the service.  The examining psychiatrist stated that the applicant
was appropriately upset and depressed about this but in a situational way.

17.  Following this mental status evaluation, his mental status was
determined to be within normal limits, he was psychiatrically cleared for
any administrative or disciplinary action and was returned to duty.

18.  The applicant's chain of command recommended approval of his request
for discharge and further recommended that the applicant be issued a
undesirable discharge certificate.

19.  On 22 May 1975, the appropriate approval authority, a brigadier
general, approved the applicant's request for discharge and directed that
the applicant be furnished an undesirable discharge certificate

20.  The applicant was discharged in the rank and pay grade of Private, E-
1, on 28 May 1975, under the provisions of AR 635-200, Chapter 10.  The
applicant's service was characterized as, "Under Other than Honorable
Conditions."

21.  On the date of his discharge, the applicant had completed 2 years,
7 months, and 3 days, total active military service.  The applicant had one
day lost time.

22.  Item 26 (Decorations, Medals, Badges, Commendations, Citations, and
Campaign Ribbons Awarded or Authorized), of the applicant's DD Form 214,
shows that he was awarded the National Defense Service Medal and the
Sharpshooter Marksmanship Qualification Badge, with Rifle Bars.  The record
contains no documentary evidence of acts of valor or achievement, which
warrant special recognition.

23.  The applicant applied to the Army Discharge Review Board (ADRB) for an
upgrade of his discharge on 17 September 1975.  After careful consideration
of the applicant's records and all other available evidence, the ADRB
determined that he had been properly discharged and denied his request for
an upgrade.  He was so notified on 28 September 1976.

24.  AR 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 submit, at any time
after the charges have been preferred, 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, but the separation authority
may direct a general discharge or an honorable discharge if such is merited
by the Soldier's overall record and if the Soldier's record is so
meritorious that any other characterization clearly would be improper.

25.  AR 635-200, paragraph 3-7a, provides that an honorable discharge is a
separation with honor and entitles the recipient to benefits provided by
law.  The honorable characterization is appropriate when the quality of the
member’s service generally has met the standards of acceptable conduct and
performance of duty for Army personnel, or is otherwise so meritorious that
any other characterization would be clearly inappropriate.  Whenever there
is doubt, it is to be resolved in favor of the individual.

26.  AR 635-200, paragraph 3-7b, 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 separation specifically allows such characterization.

27.  The applicant states that it has been 30 years since he was discharged
and he has been punished enough.  The applicant provides no other argument
beyond this.

28.  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 shows the applicant was discharged under the
provisions of AR 635-200, Chapter 10, for the good of the service, in lieu
of trial
by court-martial.  In connection with such a discharge, the applicant was
charged with the commission of an offense punishable under the UCMJ with a
punitive discharge.  Procedurally, the applicant was required to consult
with defense counsel, and to voluntarily, and in writing, request
separation from the Army, in lieu of trial by court-martial.  In doing so,
the applicant admitted guilt to the stipulated offenses under the UCMJ.

2.  The available evidence shows that all requirements of law and
regulation were met and the rights of the applicant were fully protected
throughout the separation process.  The characterization of service for
this type of discharge is normally under other than honorable conditions
and the evidence shows the applicant was fully aware of this prior to
requesting discharge.  It is believed that the reason for discharge and the
characterization of service are both proper and equitable.

3.  The applicant’s entire record of service was reviewed.  The
applicant's record contains an extensive record of disciplinary actions,
including one other drug-related violation of the UCMJ, besides the charge
which resulted in his requesting discharge, in lieu of court-martial.  The
applicant's record contains no documentary evidence of acts of valor or
achievement that would warrant special recognition and an upgrade of his
undesirable discharge.

4.  The quality of the applicant’s service was considered.  However, this
service was determined not to be sufficiently meritorious to warrant an
upgrade of his discharge.

5.  In his application to the Board, the applicant stated that after 30
years, he had been punished enough.  In his applicaation for discharge, in
lieu of trial by court-martial, the applicant stated that he had been
advised and understood the possible effects of an undesirable discharge and
that, as a result of the issuance of such a discharge, he would be deprived
of many or all Army benefits, benefits administered by the VA and those
rights and benefits given a veteran under both Federal and State law.  The
applicant stated that he understood that he could expect to encounter
substantial prejudice in civilian life because of an undesirable discharge.

6.  In order to justify correction of a military record, the applicant must
show, 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.

7.  In view of the foregoing, there is no basis for granting the
applicant's request for an upgrade of his undesirable discharge.

8.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 28 September 1976.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 27 September 1979.
However, 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

__T_____  ___WDP_  __WFC___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.




                                  _____William D. Powers____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                  |AR20050015793                          |
|SUFFIX                   |                                       |
|RECON                    |                                       |
|DATE BOARDED             |20060720                               |
|TYPE OF DISCHARGE        |UD                                     |
|DATE OF DISCHARGE        |19750528                               |
|DISCHARGE AUTHORITY      |AR 635-200, Chapter 10                 |
|DISCHARGE REASON         |                                       |
|BOARD DECISION           |DENY                                   |
|REVIEW AUTHORITY         |                                       |
|ISSUES         1.  360   |144.0000                               |
|2.   394 A01.33          |144.0133                               |
|3.                       |                                       |
|4.                       |                                       |
|5.                       |                                       |
|6.                       |                                       |


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