RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 March 2007
      DOCKET NUMBER:  AR20060011916


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Ms. Loretta D. Gulley             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. David K. Haasenritter         |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 an
honorable discharge.

2.  The applicant states, in effect, that he was given false or misleading
advice.  The applicant continues that he was told if he agreed to the
conditions of a court-martial and agreed to inform against the Vietnamese
Nationalist who was supplying him heroin, his undesirable discharge would
be upgraded automatically after six months.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge) in support of this
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 23 July 1971, the date of his discharge from active duty.
 The application submitted in this case is dated 3 August 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 limitation 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 enlisted in the Regular Army on 30 April 1970, for a
period of
5 years.  He completed the required training and was awarded military
occupational specialty 13B (Field Artillery Crewman).  The highest rank he
attained while serving on active duty was Specialist Four (SP4), pay grade
E-4.

4.  The applicant's record documents no acts of valor, significant
achievement or service warranting special recognition.

5.  On 26 November 1968, the applicant accepted nonjudicial punishment
(NJP) for failure to go to his appointed place of duty.  His imposed
punishment was an oral reprimand and 14 days extra duty.

6.  On 4 February 1969, the applicant accepted NJP for failure to go to his
appointed place of duty.  His imposed punishment was an oral reprimand,
14 days extra duty, and detention of $10.00 pay.

7.  On 10 August 1970, the applicant accepted NJP for being absent without
leave (AWOL) from 2 to 7 August 1970.  His imposed punishment was a
forfeiture of $125.00 pay.

8.  On 27 August 1970, the applicant accepted NJP for being AWOL from 12 to
26 August 1970.  His imposed punishment was a forfeiture of $96.00 pay per
month for 2 months and a reduction to the grade of PFC (E-3).

9.  On 26 May 1971, court-martial charges were preferred against the
applicant for wrongfully having in his possession 0.4 grams, more or less,
of heroin.

10.  The facts and circumstances pertaining to the applicant’s discharge
proceedings are not in his Military Personnel Records Jacket (MPRJ).
However, the MPRJ does contain a separation document (DD Form 214) that
contains the authority and reason for the applicant’s separation.  The
applicant authenticated this document with his signature indicating he was
discharged under the provisions of Army Regulation 635-200, Chapter 10; the
character of service was under other than honorable conditions; and the
reason for the discharge was in lieu of trial by court-martial.

11.  On 12 March 1971, the separation authority approved the applicant’s
request for discharge and directed that he receive an Undesirable Discharge
Certificate.  On 23 July 1971, the applicant was discharged accordingly.
The DD Form 214 he was issued confirms he completed a total of 4 years,
7 months, and 28 days of creditable active military service and that he
accrued 20 days of time lost due to AWOL.

12.  There is no indication that the applicant applied to the Army
Discharge Review Board for an upgrade of his discharge within its 5-year
statute of limitations.

13.  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.  An undesirable discharge is normally considered appropriate.
14.  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.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because he
was given false or misleading advice and the discharge should have been
automatically upgraded six months after his discharge.

2.  Contrary to the applicant's contentions, the U.S. Army has never had a
policy where a discharge was automatically upgraded after six months if
they testify against known criminals.  Every case is individually decided
based upon its merits when an applicant requests a change in his or her
discharge.

3.  The evidence of record confirms the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. The applicant’s record is void of the specific facts and
circumstances surrounding his discharge processing; it does contain a
properly constituted and signed
DD Form 214 that identifies the reason and characterization of his
discharge.  The applicant’s discharge accurately reflects his overall
record of service.

4.  In order to justify correction of a military record the applicant must
satisfactorily show, or it must otherwise satisfactorily appear, that the
record is in error or unjust.  The applicant has failed to submit
sufficient evidence that would satisfy this requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 July 1971.  Therefore, the time for
him to file a request for correction on any error or injustice expired on
22 July 1974.  However, he 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

___KAN _  ___DKH _  __LMD__  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 appear in the interest of justice to
excuse the applicant’s failure to timely file this application within the 3-
year statue of limitations prescribed by law.  Therefore, there is
insufficient basis to waive the statue of limitations for timely filing or
for correction of the records of the individual concerned.




                                        _Kathleen A. Newman_____
                                            CHAIRPERSON





                                    INDEX

|CASE ID                 |AR20060011916                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/03/20                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |MR. SCHWARTZ                            |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]