RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            25 MAY 2006
      DOCKET NUMBER:   AR20050014849


      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. William Blakely               |     |Chairperson          |
|     |Mr. Robert Osborn                 |     |Member               |
|     |Mr. Jerome 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 that his undesirable discharge be upgraded to a
more favorable discharge.

2.  The applicant states, in effect, that he did very well in his training
and it was not until he arrived at his first duty station that he was
exposed to other Soldiers returning from overseas and was introduced to
drugs.  He goes on to state that he was not aware of the impact drugs could
have on him and that he admitted himself to the base substance abuse
program.  He further states that his commander began to question him and
sent a law enforcement official to talk to him about going undercover to
discover who was trafficking drugs on base, so he complied with their
request.  He continues by stating that he moved downtown and was later
arrested for possession of stolen property, which was squared away by law
enforcement officials and his commander.  He also states that he told his
commander that all he wanted was to get treatment and carry on with his
duties but his commander did not want to hear that. So he tried to re-
commit himself to the substance abuse program.  When his commander
discovered what he was doing, he informed him (the applicant) that he was
going to separate him from the service.  He goes on to state that his
commander got his probation revoked and initiated separation proceedings;
however, had he gotten the treatment he needed he would have become a
better Soldier.

3.  The applicant provides a three-page hand-written letter explaining his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 14 May 1976.  The application submitted in this case is dated
26 September 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 was born on 9 January 1948 and enlisted in Montgomery, Alabama, on
11 October 1973 for a period of 3 years, training as a radio relay carrier
attendant and assignment to the 2nd Armored Division at Fort Hood, Texas.

4.  He was transferred to Fort Polk, Louisiana, to undergo his basic combat
training (BCT).  On 12 November 1973, nonjudicial punishment (NJP) was
imposed against him for the wrongful possession of marijuana.  His
punishment consisted of a forfeiture of pay, extra duty and restriction.
He completed his BCT and was transferred to Fort Gordon, Georgia, to
undergo his advanced individual training (AIT).

5.  On 12 March 1974, (NJP) was imposed against the applicant for being
absent without leave (AWOL) from Fort Gordon from 26 December 1973 to 28
February 1974.  His punishment consisted of a forfeiture of pay and
reduction to the pay grade of E-1.

6.  NJP was again imposed against him on 12 July 1974 for willfully
breaking a window (government property).  His punishment consisted of a
forfeiture of pay and extra duty.

7.  He completed his AIT and was transferred to Fort Hood, Texas, on 20
August 1974.

8.  On 1 September 1975, he was arrested by civil authorities for burglary
and escaping jail.  He was released to the custody of his unit on 2 October
1975.

9.  His records show that he was again confined by civil authorities from
26 October to 1 November 1975, from 9 January to 18 January 1976 and again
on 21 January 1976, on suspicion of burglary.

10.  His records further shows that he enrolled in the Alcohol Drug Abuse
Prevention and Control Program (ADAPCP) in October 1975 and on 15 January
1976, he was declared a rehabilitation failure.

11.  His records also show that on 30 September 1975, he was found guilty
of burglary and was sentenced to confinement in the Texas Department of
Corrections for 4 years and a fine of $250.00.  His confinement was
suspended and he was placed on probation for 4 years.  However, because he
was subsequently arrested for a like charge, his probation was revoked and
he was incarcerated at the Bell County jail and was subsequently
transferred to Huntsville State Prison.

12.  On 20 November 1975, the applicant’s commander notified him that he
was initiating action to separate him from the service under the provisions
of Army Regulation 635-206, due to his conviction by civil authorities.

13.  After consulting with counsel, the applicant requested consideration
of his case by a board of officers and representation by military counsel.
He indicated that he did not intend to appeal his civil conviction.  He
also elected to submit a statement in his own behalf whereas he stated that
he desired to stay in the Army.  He went on to state that he had gotten
connected with the wrong people and had gotten hooked on drugs to the point
that it was a $175.00 a day habit.  He also states that his wife was with
him at the time and was expecting a baby while he was strung out on drugs.
He stated that he started taking things that were not his to pay for his
habit.  He continued by stating that he wanted to stop but was not man
enough to turn himself in because he was afraid that he would be court-
martialed and discharged from the Army with a discharge that would prevent
him from getting a job and supporting his family.  Furthermore, his wife
told him that she could not watch him destroy himself and went back home.
He went on to state that a condition of his probation was that he enter a
drug program which he complied with when he returned to Fort Hood and felt
that it was a good program for someone who wanted to quit drugs.  He
expressed a desire to start over in the Army if given the chance, or accept
the discharge if the Army was no longer willing to take a chance on him.

14.  A board of officers was convened at Fort Hood on 8 March 1976.  The
applicant was not present; however, he was represented by counsel.  The
first person called to testify was a military police investigator (MPI) who
testified that he had known the applicant for 2 months through a marijuana
investigation.  The applicant helped by providing information regarding a
known heroin seller and by locating items he (the applicant) had stolen.

15.  His platoon sergeant testified that he had known the applicant for
11/2 years and knew he was in the ADAPCP.  However, he did not know he was
a drug addict until the commander saw him in jail.  He (the platoon
sergeant) stated that he had been told the applicant was “hands off”
because he was working with the Criminal Investigation Division (CID) to
break up a drug and stolen property ring. The applicant was rarely around
and his appearance and military bearing were bad.  He indicated that the
applicant had escaped jail and had again been arrested about a month prior.

16.  The board of officers found that the applicant was undesirable for
further service because of his misconduct and conviction by civil
authorities.  The board recommended that he be discharged with an
undesirable discharge.
17.  The appropriate authority (a major general) approved the findings and
recommendation of the board of officers on 9 April 1976 and directed that
he be furnished an Undesirable Discharge Certificate.

18.  Accordingly, he was discharged under other than honorable conditions
on 14 May 1976, under the provisions of Army Regulation 635-206, for
misconduct – conviction by civil authorities.  He had served 1 year, 11
months and 11 days of total active service and had 236 days of lost time
due to AWOL and confinement by civil authorities.

19.  He applied to the Army Discharge Review Board (ADRB) on 21 July 1977
for an upgrade of his discharge and contended at that time that it was
unjust for the Army to discharge him for a civilian offense, because he was
serving time for that offense at that time.

20.  After reviewing all of the available evidence in his case, the ADRB
determined that he had been properly and equitable discharged and voted
unanimously to deny his request for an upgrade of his discharge on 26 March
1979.  He again applied to the ADRB in 1980 for an upgrade of his discharge
and was granted a personal appearance before the ADRB Traveling Panel in
Atlanta, Georgia in February 1981.  However, he failed to appear for that
hearing and the ADRB denied his request based on a records only review.  He
was notified that he was ineligible for further review by that board.

21.  Army Regulation 635-206, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  Paragraph 33 of the
regulation provided, in pertinent part, that members convicted by civil
authorities would be processed for separation.  An undesirable discharge
was normally considered appropriate.

22.  Army Regulation 635-200, currently in effect, sets forth the basic
authority for the separation of enlisted.  Chapter 14 establishes policy
and prescribes procedures for separating members for misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense, conviction by civil authorities, desertion
or AWOL.  A discharge under other than honorable conditions is normally
considered appropriate.

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.  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.

2.  The applicant’s administrative separation was accomplished in
compliance with applicable regulations with no violations or procedural
errors, which would tend to jeopardize his rights.

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

4.  The applicant’s drug use surfaced as early as BCT and his record of
repeated misconduct continued through to his discharge.

5.  The applicant’s contentions have been noted by the Board.  However,
given the seriousness of his offenses and his otherwise undistinguished
record of service, they are not sufficiently mitigating to warrant an
upgrade of his discharge.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 28 February 1981.
As a result, the time for the applicant to file a request for correction of
any error injustice to this Board expired on 27 February 1984.  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

___WB__  ___RO __  ___JP___  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 Blakely________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050014849                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060525                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1976/05/14                              |
|DISCHARGE AUTHORITY     |AR635-206 . . . . .                     |
|DISCHARGE REASON        |CONV CIV AUTH                           |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |`627/A61.00                             |
|1.144.6100              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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