RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 August 2006
      DOCKET NUMBER:  AR20050018202


      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. G. E. Vandenberg              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Curtis L. Greenway            |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Ms. Peguine M. Taylor             |     |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 discharge be upgraded.

2.  The applicant states he needs the upgrade for employment purposes and
that the judgment was in error.  He contends that he was cleared of the
charges of drug possession and theft by a “B # 32 investigation” (Article
32, Uniform Code of Military Justice).  He indicates that his military
counsel appealed the discharge action but the appeal was not acted on.

3.  The applicant provides copies of his DD Form 214 (Report of Separation
from Active Duty), a personal statement, and four character references.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel did not present any additional arguments, contentions, or
documentation beyond that set forth in the application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 21 November 1974, the date of his discharge.  The application
submitted in this case is dated 9 December 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 record shows the applicant entered active duty on 8 September 1972,
completed training, and was awarded the military occupational specialty
(MOS) 11B (Light Weapons Infantryman).

4.  On 7 May 1973 the applicant received nonjudicial punishment (NJP) for
being absent without leave (AWOL) for the period 2 through 29 April 1973.

5.  He was assigned duty in Germany on 5 October 1973 where he served until
discharged.
6.  The record indicates that in June 1974 the applicant tested positive
for illegal use of heroin and amphetamines and it was recommended that he
attend the drug program.  There is no documentation of attendance in the
program.

7.  On 10 July 1974 the applicant was charged with theft of a ring from a
fellow Soldier.

8.  On 17 August additional charges of possession of 17 packets and 2 grams
of heroin and marijuana cigarettes were preferred.

9.  After consulting with counsel and being advised of his rights and
options, the applicant submitted a formal request, under the provisions of
Army Regulation 635-200, chapter 10, for discharge for the good of the
service (in lieu of trial by court-martial for an offense punishable by a
bad conduct or dishonorable discharge).  He acknowledged that if the
request was accepted that he could receive a discharge under other than
honorable conditions and be furnished an undesirable discharge (UD)
Certificate.  He acknowledged that such a discharge would deprive him of
many or all of his benefits as a veteran, and that he could expect to
experience substantial prejudice in civilian life if he received a UD.

10.  On 5 November 1974 the applicant requested to withdraw his request for
a chapter 10 discharge.  He stated that the Article 32 hearing had refuted
the charges and he now had evidence to refute the charges.

11.  On 6 November 1974 the command Staff Judge Advocate (SJA) found the
case legally sufficient and recommended disapproval of the request for
withdrawal of the request for discharge.

12.  On 6 November 1974 the discharge authority approved the request for
discharge under Army Regulation 635-200, chapter 10 and directed the
applicant be reduced to the lowest enlisted grade and furnished a UD.

13.  The applicant was discharged with a UD under the provisions of Army
Regulation 635-200, chapter 10 on 21 November 1974.  He had 2 years,
1 month, and 16 days of creditable service with 28 days of lost time.

14.  The record indicates that at least one and possibly two Article 32
hearings were convened.  However, the record does not contain copies of the
record of either hearing.

15.  On 15 April 1982 the Army Discharge Review Board denied the
applicant's petition to upgrade his discharge.
16.  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.

17.  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.  A
discharge under other than honorable conditions is normally considered
appropriate.  However, at the time of the applicant's separation the
regulation provided for the issuance of an undesirable discharge.  A
request for discharge submitted per this chapter may be withdrawn only with
the consent of the commander exercising general court-martial jurisdiction.

18.  The Manual for Courts-Martial, Table of Maximum Punishments, as then
in effect, set forth the maximum punishments for offenses chargeable under
the UCMJ.  It provided for a dishonorable discharge for any illegal drug
offense.  It further stated that an individual convicted of two or more
offenses for which the authorized confinement totals 6 or more months, may
receive a punitive even though a bad conduct discharge is not otherwise
authorized.

DISCUSSION AND CONCLUSIONS:

1.  The discharge proceedings were conducted in accordance with law and
regulations applicable at the time.  The character of the discharge is
commensurate with the applicant's overall record of military service.

2.  While the applicant contends that an Article 32 hearing cleared him of
the charges the record does not contain a copy of that hearing or its
findings.  Without corroboration of this finding no correction of the
record is warranted.


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 15 April 1982.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 14 April 1985.  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

__CLG__  ___JBG _  _PMT____  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.




                                  __Curtis L. Greenway____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR200500188202                          |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060810                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19741121                                |
|DISCHARGE AUTHORITY     |AR 635-200. . . . .                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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