RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      22 August 2006
      DOCKET NUMBER:  AR20050016790


      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. Stephanie Thompkins           |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Jerome L. Pionk               |     |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 an upgrade of his dishonorable discharge to
honorable or general.

2.  The applicant states that in the summer of either 1961 or 1962, he was
given a dishonorable discharge from the Army at Fort Lewis, Washington.
The discharge was a result of his usage of morphine on a daily basis.  He
had become addicted without realizing it or the consequences.  He had just
returned from a long tour of duty in the demilitarized zone in Korea.  For
whatever reason he was persuaded by friends to try morphine and found he
enjoyed the experience for the release it gave him from the dull duties he
faced at Fort Lewis. He was sentenced to 5 years in Leavenworth.  His
sentence was reduced to 3 years and he was paroled after serving 2 years.

3.  The applicant also states that since that time he has not been in
trouble with the law except for traffic violations while drinking.  He has
not used any drugs other than alcohol in over 40 years.  He has been, and
presently is in treatment for the disease of alcoholism.  He is a carpenter
by trade and his work history in construction has been excellent.  He
became unable to work about 10 years ago due to medical problems.  He feels
he is entitled to an upgrade of his discharge because he was very young at
the time of his offense and the military was much harsher against drug
users then than they are now.  Had he committed this offense now, he may
have received treatment and received a more honorable discharge. He asks
the Board to keep in mind that he has not used drugs illegally since that
time.

4.  The applicant did not provide additional documentary evidence in
support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 29 August 1964, the date of his discharge from active duty.
The application submitted in this case is dated 11 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 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 military records show he enlisted in the Regular Army
on 2 December 1960, for 3 years.  He was trained in military occupational
specialty 111.10 (Light Weapons Infantryman).  He was advanced to pay grade
E-3 on 22 January 1963.

4.  On 22 July 1963, he was punished under Article 15, Uniform Code of
Military Justice, for failing to go at the time prescribed to his appointed
place of duty.  His punishment included 7 days restriction and 14 days
extra duty.

5.  On 20 December 1963, the applicant was convicted by general court-
martial of wrongfully possessing 1.5 cubic centimeters, more or less, of a
habit forming narcotic drug (morphine); unlawfully entering the business
office of another soldier to commit a criminal offense (larceny);
wrongfully using a habit-forming narcotic drug (codeine and dolophine);
wrongfully using a habit-forming narcotic drug (morphine); and wrongfully
possessing three Dilaudid and two Demerol tablets, such tablets being a
habit forming narcotic drug.  His sentence consisted of confinement at hard
labor for 5 years, a dishonorable discharge, a forfeiture of all pay and
allowances, and a reduction to the grade of private, pay grade E-1.  He was
transferred to the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas,
for service of his sentence to confinement.

6.  On 14 May 1964, the U.S. Army Board of Review found the approved
findings of guilty and sentence as approved by proper authority correct in
law and fact and having determined, on the basis of the entire record, that
the findings of guilty and only so much of the sentence as provided for
dishonorable discharge, forfeiture of all pay and allowances, confinement
at hard labor for 3 years, and reduction to the grade of private should be
approved, and affirmed the same as thus modified.

7.  On 18 August 1964, the General Court-Martial Convening Authority
ordered the applicant's sentence to a dishonorable discharge executed and
issued General Court-Martial Order Number 678.

8.  The applicant was discharged on 29 August 1964.  At the time of his
discharge, the applicant had completed 2 years, 8 months, and 29 days of
active duty service and 92 days of lost time from 1 September through 1
December 1963 and 272 days lost subsequent to normal expiration of term of
service from 2 December 1963 through 29 August 1964.

9.  On 19 December 1966, the applicant was granted parole and released from
confinement.

10.  The applicant’s case is ineligible for review by the Army Discharge
Review Board due to his conviction by a general court-martial.

11.  The applicant is unable to obtain medical treatment from the
Department of Veterans Affairs (VA) due to his discharge.

12.  Army Regulation 635-204, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  Paragraph 1(a) of the
regulation provided, in pertinent part, that an enlisted person would be
dishonorably discharged pursuant only to an approved sentence of a general
court-martial imposing a dishonorable discharge.  The appellate review must
be completed and the affirmed sentences ordered duly executed.

13.  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.

14.  Army Regulation 635-200, paragraph 3-7, also 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.

15.  Court-martial convictions stand as adjudged or modified by appeal
through the judicial process.  In accordance with Title 10, United States
Code, Section 1552, the authority under which this Board acts, the ABCMR is
not empowered to change a discharge due to matters which should have been
raised in the appellate process, rather it is only empowered to change the
severity of the sentence imposed in the court-martial process and then only
if clemency is determined to be appropriate.  Clemency is an act of mercy,
or instance of leniency, to moderate the severity of the punishment
imposed.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that since he was very young at the time of the
offense and the military was much harsher against drug users then than they
are now, he is entitled to an upgrade of his discharge.  The applicant has
submitted neither probative evidence nor a convincing argument in support
of his request and has not shown error, injustice, or inequity for the
relief, he now seeks.

2.  Trial by court-martial was warranted by the gravity of the offenses
charged.  Conviction and discharge were effected in accordance with
applicable law and regulations, and the discharge appropriately
characterizes the misconduct for which the applicant was convicted.

3.  The Board is empowered to change the characterization of the discharge
if clemency is determined to be appropriate.  Given the above, and after a
thorough review of the applicant’s record and any evidence submitted, the
Board found no cause for clemency.  The Board acknowledges the applicant's
desire to have his discharge upgraded; however, the Board does not change
the character of service for the purpose of an applicant's obtaining
eligibility for VA or other available benefits.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 29 August 1964; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 28 August 1967.  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.

5.  In view of the foregoing, there is no basis for granting the
applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JLP__  __LDS __  __J_____  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.




                                  _____Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016790                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060822                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |A70                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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