RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 September 2007
      DOCKET NUMBER:  AR20070008176


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Frank C. Jones                |     |Member               |
|     |Ms. Carmen Duncan                 |     |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 general discharge under honorable
conditions be upgraded to fully honorable.

2.  The applicant states, in effect, that during the Vietnam conflict
President Carter granted amnesty to all Soldiers discharged due to drug-
related offenses and ordered their discharges upgraded to honorable.

3.  The applicant provides a DD Form 293 (Application for the Review of
Discharge or Dismissal from the Armed Forces of the United States).

CONSIDERATION OF EVIDENCE:

1.  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 also allows the
Army Board for Correction of Military Records (ABCMR) to excuse an
applicant’s failure to timely file within the 3-year statute of limitations
if the ABCMR determines it would be in the interest of justice to do so.
While it appears the applicant did not file within the time frame provided
in the statute of limitations, the ABCMR has elected to conduct a
substantive review of this case and, only to the extent relief, if any, is
granted, has determined it is in the interest of justice to excuse the
applicant’s failure to timely file.  In all other respects, there are
insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 30 June 1972.  He
completed basic training and advanced individual training and was awarded
military occupational specialty 12B (Combat Engineer).

3.  The applicant’s discharge packet is not available.  He arrived at the
Stateside transfer point without the packet but with the 5 December 1974
action by the approval authority approving the applicant’s discharge under
the provisions of Army Regulation 635-200, paragraph 13-5(3)(b), for drug
abuse and directing that a General Discharge Certificate be furnished.

4.  On 7 January 1975, the applicant was discharged, in pay grade E-4, with
a general discharge under honorable conditions, under the provisions of
Army Regulation 635-200, chapter 13 for unfitness.  He had completed 2
years,            5 months, and 26 days of creditable active service with
12 days of lost time.

5.  On 28 March 1977, the Secretary of Defense announced that President
Carter approved a special review program for those veterans discharged
between 4 August 1964 and 28 March 2973.  The Department of the Army
Special Discharge Review Program (SDRP) reviewed any undesirable or general
discharge during the specified period and mandated an upgrade of
undesirable discharges if the individual was wounded in Vietnam, received a
personal medal in Vietnam, completed a tour in Vietnam, completed alternate
service, or had an honorable discharge from previous service.  General
discharges were considered for honorable discharges based on the same
criteria.

6.  On 27 November 1979, the U.S. District Court for the District of
Columbia, in Giles v. Secretary of the Army, issued an order which required
the Army to screen certain records systems and identify individuals
separated for drug abuse. The military records of these individuals were to
be reviewed to determine whether there was direct or indirect evidence of
compelled urinalysis introduced by the government into the administrative
discharge process which resulted in their separation with a less than fully
honorable discharge and, if so, the former Army service member was entitled
to an honorable discharge

7.  Around June 1980, the applicant was identified as a potential member of
the class identified in the Giles v. Secretary of the Army case.  A review
of his records by the Court-Ordered Discharge Review Project determined
that the facts and circumstances of his discharge were not in his file.  It
was therefore presumed that the Army followed its own policies and did not
enter exempt information into the discharge process.

8.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 13, then in effect, contained
the policy and outlined the procedures for separating individuals for
unfitness when they were involved in frequent incidents of a discreditable
nature with civil or military authorities and it was established that
further efforts at rehabilitation were unlikely to succeed or they are not
amenable to rehabilitation measures.

9.  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, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended that during the Vietnam conflict President
Carter granted amnesty to all Soldiers discharged due to drug-related
offenses and ordered their discharges upgraded to honorable.  It appears
the applicant is referring to the SDRP.  However, the SDRP was only
applicable to members discharged between 4 August 1964 and 28 March 1973.
The applicant was discharged on 7 January 1975 with a general discharge.
In addition, the SDRP mandated an upgrade of undesirable discharges (but
not necessarily to fully honorable) for qualified Soldiers; however,
general discharges were only considered for upgrade.

2.  The applicant’s discharge was also considered for upgrade under Giles
v. Secretary of the Army; however, because his discharge packet was not
available it was presumed that the Army followed its own policies and did
not enter exempt information into the discharge process.

3.  The applicant’s discharge packet is still not available.  Again, in the
absence of evidence to the contrary, it is presumed that the discharge
proceedings were conducted in accordance with law and regulations
applicable at the time.  Therefore, there is insufficient evidence that
would warrant granting the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__lds___  __fcj___  __cd____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




                                  __Linda D. Simmons
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070008176                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070906                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19750107                                |
|DISCHARGE AUTHORITY     |AR 635-200, ch 13                       |
|DISCHARGE REASON        |A50.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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