RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 January 2007
      DOCKET NUMBER:  AR20060005266


      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. Dean L. Turnbull              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Kenneth L. Wright             |     |Chairperson          |
|     |Mr. Larry W. Racster              |     |Member               |
|     |Ms. Ernestine I. Fields           |     |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 his under other than honorable conditions
discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he never sold any drugs and he
did not refuse to get help for his drug addiction.  He states that he does
have a problem with drugs and alcohol and all they did was party during the
1970's, but he did not have any drugs or a large sum of money when he was
arrested.  The applicant also contends that his discharge was racially
motivated.

3.  He further states that he was told that he would receive all of his
military benefits after he was discharged but after he returned to civilian
life he was denied all of his veteran benefits.

4.  The applicant does not provide any additional documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 7 February 1979, the date of his discharge from active
duty.  The application submitted in this case is dated 2 May 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.  The applicant’s record shows that he entered active duty on 14
September 1976.  He entered basic combat training and advanced individual
training and was awarded the military occupational specialty 05F2O (Radio
Teletypewriter Operator).

4.  On 29 June 1977, the applicant accepted nonjudicial punishment (NJP)
under the provisions of Article 15, Uniform Code of Military Justice
(UCMJ), for unlawfully, knowingly, and intentionally, possessing a
controlled substance to wit: Marijuana.  His punishment consisted of a
forfeiture of $187.00 per month for one month and reduction to private/pay
grade E-1, with all punishment suspended for a period of 60 days.
5.  On 9 March 1978, the applicant accepted NJP under the provisions of
Article 15, UCMJ for wrongfully having in his possession 2.6 grams, more or
less, of marijuana.  His punishment consisted of a forfeiture of $198.00
per month for two months and reduction to private/pay grade E-1, with the
forfeiture of $198.00 per month for two months suspended for six months.

6.  On 18 April 1978, due to unknown reasons, the suspended portion of the
applicant’s punishment was vacated

7.  On 1 May 1978, the applicant's commander recommended he be barred from
reenlistment.  On 13 June 1978, the bar to reenlistment was approved.

8.  On 3 December 1978, an eyewitness noted in a sworn statement that he
saw the applicant receiving money from another Soldier under the stall of
the military latrine as he provided a sack to the Soldier.  The eyewitness
took the sack, the applicant and the other Soldier to his office then
called the Military Police.

9.  On 3 December 1978, a field test analysis of the substance found it to
be  
5 grams of marijuana.

10.  The applicant's service records contain a DD Form 458 (Charge Sheet),
dated 8 December 1978, which shows he was charged with wrongfully having in
his possession 5.0 grams of marijuana and wrongfully selling marijuana.

11.  On 5 January 1979, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
maximum permissible punishment authorized under the UCMJ, the possible
effects of an under other than honorable conditions discharge, and of the
procedures and rights that were available to him.  Subsequent to receiving
this legal counsel, the applicant voluntarily requested discharge for the
good of the service, in lieu of trial by court-martial.

12.  In his request for discharge, the applicant indicated that he
understood that by requesting discharge, he was admitting guilt to the
charge against him, or of a lesser included offense, that also authorized
the imposition of a bad conduct or dishonorable discharge.  He further
acknowledged he understood that if his discharge request was approved, he
could be deprived of many or all Army benefits, that he could be ineligible
for many or all benefits administered by the Department of Veterans Affairs
(VA), and that he could be deprived of his rights and benefits as a veteran
under both Federal and state law.  He also acknowledged that he understood
that he may expect to encounter substantial prejudice in civilian life by
reason of an under other than honorable discharge.
13.  On 10 January 1979, the applicant’s commander forwarded the
recommendation for separation to the commander of the U.S. Army Field
Artillery Center, Fort Sill, Oklahoma for approval.

14.  On 17 January 1979, the major general in command of the U.S. Army
Field Artillery Center, Fort Sill, Oklahoma, approved the applicant's
request and directed that the applicant be furnished a Under Other Than
Honorable Conditions Discharge Certificate.

15.  On 7 February 1979, the applicant was discharged.  The DD Form  
214 (Report of Separation from Active Duty) he was issued shows he
completed a total of 2 years, 6 months, and 6 days of active military
service.

16.  The applicant applied to the Army Discharge Review Board (ADRB) on
17 April 1980.  On 8 January 1981, the ADRB reviewed the applicant's record
and determined that his discharge was proper and equitable.

17.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-
martial.  A discharge under other than honorable conditions is normally
considered appropriate.

18.  Army Regulation 635-200, paragraph 3-7a, 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.

19.  Army Regulation 635-200, paragraph 3-7b, 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.

20.  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.  The applicant requested that his under other than honorable conditions
discharge be upgraded to an honorable discharge.

2.  The applicant's statement that he never sold drugs and he was told that
he would receive veteran benefits once he became a civilian is not
supported by the evidence of record.  An eyewitness made a statement that
he saw the applicant making a transaction with money and a sack (5 grams of
marijuana) between himself and a Soldier in a military latrine.  The
applicant also accepted NJP twice for possession of marijuana.

3.  In addition, the acknowledged that if his discharge request was
approved, he could be deprived of many or all Army benefits, that he could
be ineligible for many or all benefits administered by the VA and that he
could be deprived of his rights and benefits as a veteran under both
Federal and state law.  Also, if he received a discharge under other than
honorable conditions, he would encounter difficulty in civilian life.

4.  The applicant has not submitted any evidence to show his discharge was
racially motivated, and there is no evidence of record which would suggest
a racial motivation.

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.  Therefore, he is not
entitled to correction of his records to show a general discharge or an
honorable discharge.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 8 January 1981.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 7 January 1984.  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

___klw___  ____lwr__  __eif____  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.




                                  __________Kenneth L. Wright______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060005266                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20070123                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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