RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            07 September 2006
      DOCKET NUMBER:   AR20060003389


      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:

|     |Ms. Susan Powers                  |     |Chairperson          |
|     |Mr. Jonathan Rost                 |     |Member               |
|     |Mr. David Haasenritter            |     |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
honorable and that his rank of sergeant be restored.

2.  The applicant states that the punishment he received was too harsh in
the respect that he had never been subjected to any punishment or prior
discipline during his career and that a formal military court-martial was
never convened.  He further states that he has led an exemplary life since
his discharge, that he has served as a police officer for 14 years and that
he has been a contributing member of his community and country.

3.  The applicant provides a three-page statement explaining his position,
a copy of a report of separation (DD Form 214) dated 23 March 1970, a two-
page resume’, nine letters of commendation/appreciation, and 15 training
certificates of completion.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 12 October 1973.  The application submitted in this case is
dated 17 February 2006.

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 inducted in Detroit, Michigan on 15 August 1967 and was
transferred to Fort Knox, Kentucky.  On 21 August 1967, he was honorably
discharged for the purpose of enlisting in the Regular Army.  On 22 August
1967, he enlisted in the Regular Army for a period of 3 years and training
as a subsistence storage specialist.  He completed his basic combat
training at Fort Knox and his advanced individual training (AIT) at Fort
Lee, Virginia, and was transferred to Germany in January 1968.  He was
advanced to the pay grade of E-4 on 11 October 1968 and he remained in
Germany until 7 December 1968, when he was transferred to Vietnam.

4.  He arrived in Vietnam on 17 January 1969 and remained there until 22
March 1970, when he was transferred to Fort Lewis, Washington.  He was
honorably released from active duty on 23 March 1970 as an overseas
returnee and was transferred to the United States Army Reserve Control
Group (Reinforcement).

5.  On 30 March 1971, he again enlisted in the Regular Army for a period of
3 years and airborne training.  He completed his airborne training and was
transferred to Fort Bragg, North Carolina for assignment to an airborne
supply company.

6.  On 18 June 1971, he again reenlisted for a period of 4 years,
attendance at  drill sergeant school and assignment to Fort Knox.  He
departed for Fort Knox on 11 August 1971, attended three 1-week courses at
Fort Knox as a hard-hat drill sergeant and graduated from Drill Sergeant
School in 1972.  He was promoted to the pay grade of E-5 on 25 February
1972 and was awarded the drill sergeant military occupational specialty
(MOS) of OOF40.

7.  On 4 June 1973, charges were preferred against the applicant for
unlawful possession of 19 plastic bags of marijuana, for the wrongful
attempt to sell marijuana to trainees and for unlawfully concealing a
deadly weapon (pistol).

8.  The applicant went absent without leave (AWOL) on 9 August 1973 and
remained absent until he was returned to military control on 17 August
1973.  The record is silent as to any punishment imposed for that offense.

9.  However, after consulting with his defense counsel, the applicant
submitted a request for discharge for the good of the service, under the
provisions of Army Regulation 635-200, chapter 10, in lieu of trial by
court-martial.  In his request he indicated that he was making the request
of his own free will, without coercion from anyone and that he was aware of
the implications attached to his request.  He acknowledged that he
understood that he could receive a discharge under other than honorable
conditions and that he might be deprived of all benefits as a result of
such a discharge.  He also elected to submit a statement in his own behalf,
whereas he asserted that while his career had not been what he hoped for,
he liked the Army and wished that people would get it together the way it
was supposed to be.

10.  Meanwhile, the applicant’s commander initiated action to remove him
from the drill sergeant program.  The applicant appealed that action
contending that such action was premature because he had not been convicted
as of that date.  He also asserted that he was not attempting to sell
marijuana to trainees.

11.  A Drill Sergeant Evaluation Panel convened with the applicant, his
commander and his first sergeant present.  That board voted unanimously to
remove him from the program and to withdraw his MOS.

12.  On 2 October 1973, the appropriate authority (a major general)
approved the applicant’s request for discharge and directed that he be
reduced to the pay grade of E-1 and to furnish him with an Undesirable
Discharge Certificate.

13.  Accordingly, he was discharged under other than honorable conditions
on 12 October 1973, under the provisions of Army Regulation 635-200,
chapter 10, in lieu of trial by court-martial.  He had 6 years, 1 month and
9 days of total active service and had 12 days of lost time due to AWOL and
imprisonment.

14.  The applicant applied to the Army Discharge Review Board for an
upgrade of his discharge contending that his discharge was unjust when
considering that he had served over 6 years of honorable service without
incident, to include a tour in Vietnam.  He asserted that based on his
years of good service and the fact that he had been gainfully employed
since his discharge, his discharge should be upgraded.  On 29 August 1974
the Army Discharge Review Board denied the applicant's petition to upgrade
his discharge.

15.  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.

16.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge
for the good of the service in lieu of trial by court-martial.  A condition
of submitting such a request is that the individual concerned must indicate
that they are submitting the request of their own free will, without
coercion from anyone and that they have been briefed and understand the
consequences of such a request as well as the discharge they might receive.
 A discharge under other than honorable conditions was then and still is
normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, for the good of the service to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a
trial by court-martial, he chose to voluntarily request a discharge for the
good of the service in hopes of avoiding a punitive discharge and having a
felony conviction on his records.

4.  The applicant's contentions and supporting documents as well as his
overall record of service have been considered.  However, they are not
sufficiently mitigating to warrant relief when compared to the seriousness
of his offenses and his rank and position at the time.  The applicant
violated the trust placed in him as both a NCO and a drill sergeant.
Accordingly, his service simply does not rise to the level of even a
general discharge.

5.  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.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 29 August 1974.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 28 August 1977.  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

___DH __  ___JR __  ___SP  __  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.




                                  _____ Susan Powers______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003389                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060907                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1973/10/12                              |
|DISCHARGE AUTHORITY     |AR635-200/CH10 . . . . .                |
|DISCHARGE REASON        |GD OF SVC                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |689/A70.00                              |
|1.144.7000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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