RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        9 January 2007
      DOCKET NUMBER:  AR20060005806


      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. James E. Anderholm            |     |Chairperson          |
|     |Mr. Jerome L. Pionk               |     |Member               |
|     |Mr. Scott W. Faught               |     |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 (UD) be upgraded
to honorable.

2.  The applicant states the United States Court of Military Appeals set
aside the findings and sentence of his general court-martial with a
restoration of all rights, privileges, and property.  He states that after
the Court set aside his case he was placed on excess leave and sent home.
This prevented him from contacting or calling any witnesses and rendered
him powerless to defend himself against the charges.

3.  The applicant provides copies of the United States Court of Military
Appeals decisional document, a DD Form 214 (Report of Separation from
Active Duty) copy 8, a DD Form 214 copy 2, three DA Forms 2139 (Statement
of Account), and a 1975 letter from his attorney notifying him of the
Courts decision.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 22 July 1976, the date of his discharge.  The application
submitted in this case is dated 17 April 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 entered active duty on 29 August 1972.

4.  The applicant was charged with selling cocaine on 8 and 13 September
1973 while stationed in the Canal Zone.

5.  On 12 December 1973 a general court-martial found the applicant guilty
and sentenced him to confinement for 18 months and to be dishonorably
discharged.

6.  The general court-martial convening authority approved the sentence and
finding on 11 March 1974.
7.  The applicant's confinement in excess of one year was remitted by order
of the Secretary of the Army.  He was restored to duty and he requested
indefinite excess leave.

8.  On 16 September 1974 the applicant was placed on excess leave pending
the completion of his appellate actions.

9.  The United States Army Court of Military Review affirmed the findings
and sentence as promulgated.  The specific date of this action is not noted
in the available records.

10.  The applicant's case was accepted for review and considered by the
United States Court of Military Appeals.  On 12 December 1975 the Court of
Military Appeals found that there was sufficient evidence of improper
actions to reverse the lower court's decision.  The Court of Military
Appeals noted that a rehearing may be ordered.

11.  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 he was
admitting guilt or guilty of the charge against him or a lesser included
charge.  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.

12.  On 9 June 1976 the separation authority approved the discharge request
and directed the applicant be reduced to the lowest enlisted grade and
separated with a UOTHC.

13.  Headquarters, Combined Arms Center and Fort Leavenworth General Court-
Martial Order Number 103, dated 9 June 1976, noted that the applicant's
findings of guilty and the sentence were set aside and the directed that
all rights, privileges, and property affected by the findings of guilty to
be restored to him.

14.  The applicant was discharged under the provisions of Army Regulation
635-200, chapter 10, for the good of the service in lieu of trial by court-
martial on 22 July 1976.

15.  There is no indication the applicant applied to the Army Discharge
Review Board within its 15-year statutory limit for review.

16.  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.

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.  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.

3.  Notwithstanding his assertion that being on excess leave precluded him
from defending himself against the charges, the record shows he requested
indefinite excess leave.  Furthermore, he consulted with counsel, admitted
guilt, and then voluntarily requested discharge in lieu of a second trial
by court-martial.

4.  The applicant chose to request an administrative discharge rather than
risk the consequences of a court-martial.  Although he may now feel that he
made the wrong choice, he should not be allowed to change his mind at this
late date.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 July 1976; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 21 July 1979.  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

__JEA__  __JLP ___  __SWF__  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.




                                  __    James E. Anderholm___________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060005806                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070109                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19760609                                |
|DISCHARGE AUTHORITY     |AR 635-200 CH 10. . . . .               |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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