RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 July 2006
      DOCKET NUMBER:  AR20050016199


      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             |
|     |Ms. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Ms. Carmen Duncan                 |     |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, in effect, that his undesirable discharge be
upgraded.

2.  The applicant states he was “framed.”

3.  The applicant provides no additional evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 12 January 1977.  The application submitted in this case is
dated 24 October 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 enlisted on 26 August 1975 for a period of 3 years.  He
successfully completed basic combat training and advanced individual
training in military occupational specialty 64C (motor transport operator).

4.  On 1 March 1976, nonjudicial punishment was imposed against the
applicant for possession of marijuana.  His punishment consisted of a
forfeiture of pay, restriction, and extra duty.

5.  On 10 November 1976, charges were preferred against the applicant for
possession of heroin and caffeine.  Trial by summary court-martial was
recommended.

6.  On 10 November 1976, after consulting with counsel, the applicant
submitted a request for discharge for the good of the service under the
provisions of Army Regulation 635-200, chapter 10.  He indicated in his
request that he understood that he could be discharged under other than
honorable conditions and furnished an Undesirable Discharge Certificate,
that he might be deprived of many or all Army benefits, that he might be
ineligible for many or all benefits administered by the Veterans
Administration and that he might be deprived of his rights and benefits as
a veteran under both Federal and State law.  He also acknowledged that he
might encounter substantial prejudice in civilian life because of an
undesirable discharge.  He elected not to submit a statement in his own
behalf.

7.  On 17 December 1976, the separation authority approved the applicant's
request for discharge and directed that he be furnished an undesirable
discharge.

8.  Accordingly, the applicant was discharged with an undesirable discharge
on 12 January 1977 under the provisions of Army Regulation 635-200, chapter
10, for the good of the service.  He had served 1 year, 4 months, and 17
days of total active service.

9.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge within its 15-year statute of
limitations.

10.  Army Regulation 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 at any time after the charges
have been preferred, submit a request for discharge for the good of the
service in lieu of trial by court-martial.  At the time, an undesirable
discharge was normally considered appropriate.

11.  Army Regulation 635-200, paragraph 3-7, 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 (emphasis
added), 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.

12.  Army Regulation 635-200, paragraph 3-7, 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 the Soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was “framed” relates to evidentiary
and procedural matters that could have been addressed and conclusively
adjudicated in a court-martial appellate process.  However, the applicant
voluntarily requested discharge in lieu of trial by court-martial.

2.  The applicant’s voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial,
was administratively correct and in conformance with applicable
regulations.  He had an opportunity to submit a statement in which he could
have voiced his concerns and he failed to do so.

3.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.

4.  Since the applicant’s record of service included one nonjudicial
punishment and a serious drug offense that led to referral of a summary
court-martial charge, his record of service was not satisfactory and did
not meet the standards of acceptable conduct and performance of duty for
Army personnel.  Therefore, the applicant's record of service is
insufficiently meritorious to warrant a general or honorable discharge.

5.  Records show the applicant should have discovered the alleged injustice
now under consideration on 12 January 1977; therefore, the time for the
applicant to file a request for correction of any injustice expired on 11
January 1980.  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

JS_____  __CD____  _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.




                                  __John Slone___________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016199                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060711                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19770112                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 10                   |
|DISCHARGE REASON        |For the good of the service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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