RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 April 2007
      DOCKET NUMBER:  AR20060014763


      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. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. David K. Haasenritter         |     |Member               |
|     |Mr. John G. Heck                  |     |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, in effect that his discharge be upgraded.

2.  The applicant states, in effect, that he was only 17 years old when he
entered the military.  He had a new wife and was going through a lot of
problems at that time.  He had no education and thought that he was ready
for the world.  He tried his best to be a good Soldier and perform his
duties, but his life did not turn out that way.  He went to his first
sergeant with his problems.  He was counseled but the problem of his
failing marriage and the pressure of the military started him to drink and
use drugs, seeking relief from the fears and pressures that he was under.
If he could reenlist this very day and serve his country he would in order
to make this right.  The applicant states, “Please take a keen interest in
his case and may God bless.”  He adds that he has completed Moral
Reconation Therapy and wants to go to school to become an alcohol and drug
counselor.

3.  The applicant provides no additional documents in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 9 February 1977, the date he was discharged from active
duty service.  The application submitted in this case is dated 29 October
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.  On 18 March 1974, the applicant enlisted in the Regular Army for a
period of 3 years, with parental consent.  He was 17 years old at the time
of his enlistment. He completed the required training and was awarded
Military Occupational Specialty (MOS) 76Y (Unit Supply Specialist).  The
highest grade he attained was pay grade E-4.
4.  On 25 April 1975, the applicant was apprehended by civil authorities
for writing a bad check in the amount of $24.00.  At the time of his
apprehension civil authorities ran a check of his record which revealed
that the applicant had a bench warrant out on him for failing to appear in
court.  The applicant was arrested and placed under a bond of $1,000.00,
for violating the state of Georgia’s Substance Control Act and a bond of
$100.00 for the charge of writing a bad check.  The case was ordered
continued until 17 November 1975.

5.  On 17 November 1975, the applicant pled guilty to the charges of
possession of a controlled substance.  He was sentenced to serve 10 days in
jail and a $20.00 fine.  The applicant was released to military
authorities.  The applicant’s command was not notified that the applicant
was placed in the Muscogee County Jail.  There is no evidence in the
applicant’s military record which indicates that he was punished by
military authorities for the offenses.

6.  On 12 January 1976, the applicant accepted nonjudicial punishment for
two incidents of failure to go at the prescribed time to his appointed
place of duty.  His imposed punishment was a reduction to pay grade E-3 and
a forfeiture of $50.00 pay.

7.  On 14 January 1976, the applicant was reported for being absent without
leave (AWOL).  He was returned to military control on 18 January 1976.  On
19 January 1976, the applicant again went AWOL.

8.  On 19 March 1976, while in AWOL status, the applicant was convicted by
the Superior Court of Muscogee County, Georgia of possession of a
controlled substance (Heroin).  He was sentenced to 1 year at hard labor in
the Georgia State Penitentiary and thereafter placed on probation for 4
years.

9.  On 11 November 1976, the unit commander notified the applicant that he
was being recommended for discharge under the provisions of Army Regulation
635-206, due to a conviction by a civil court.  On 12 November 1976, the
applicant acknowledged that he had been advised by legal counsel of the
basis for the contemplated separation action and the rights available to
him.  The applicant waived consideration and personal appearance of his
case by a board of officers and declined to submit a statement in his
behalf.

10.  On 15 November 1976, a Report of Medical Examination found the
applicant qualified for separation.
11.  On 16 November 1976, a Mental Status Evaluation found the applicant
fit for retention or separation.

12.  On 20 January 1977, the appropriate authority approved the
recommendation and directed that the applicant be reduced to the lowest
enlistment grade and discharged under the provisions of Army Regulation
635-206, by reason of misconduct (civil conviction), with discharge under
other than honorable conditions (UOTHC).

13.  The separation document (DD Form 214) issued to the applicant upon his
separation shows that on 9 February 1977, the applicant was discharged in
pay grade E-1, under the provisions of Army Regulation 635-206, by reason
of a conviction by a civil court, with an UOTHC.  He had completed 2 years,
1 month, and 4 days of creditable active service and 293 days of time lost.

14.  Army Regulation 635-206, in effect at the time, provided the authority
for the administrative separation or retention of enlisted personnel who
had committed an act and or acts of misconduct.  Section III of that
regulation prescribed the standards and procedures for processing cases of
individuals who, during their current term of active military service, had
been convicted by a civil court.

15.  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.

16.  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’s contentions were carefully considered.  However, the
mitigating factors presented, to include the applicant’s youth, are not
sufficiently mitigating to warrant an upgrade of his discharge at this late
date.

2.  The evidence of record confirms the applicant’s discharge processing
was accomplished in accordance with the governing regulation.  All
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout the separation process.

3.  The evidence of record also reveals that the applicant had a record of
AWOL related disciplinary infractions prior to the civil conviction that
ultimately led to his discharge.  Further, his record reveals no acts of
valor, significant achievement, or service warranting special recognition.
Therefore, it is concluded that his
discharge accurately reflects his overall record of short and
undistinguished service.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 9 February 1977.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 8 February 1980.  However, he failed to 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

___JS___  ___DKH _  ___JGH _  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.




                                            _John Slone_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/04/19                              |
|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.                      |                                        |


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