RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 August 2007
      DOCKET NUMBER:  AR20070005023


      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             |
|     |Ms. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Paul M. Smith                 |     |Chairperson          |
|     |Mr. Rodney E. Barber              |     |Member               |
|     |Mr. Rowland C. Heflin             |     |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 under other than
honorable conditions be upgraded to an honorable or a general discharge so
he can obtain benefits through the Department of Veterans Affairs (VA).

2.  The applicant states that his discharge is not in error or unjust.  He
states that he waited too long to try to get an upgrade of his discharge.
He states, in effect, that he did not know that there was a statute of
limitation on getting his discharge upgraded.

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

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.  On 15 March 1977, the applicant enlisted in the Army in Jackson,
Mississippi, for 3 years, in the pay grade of E-1.  He successfully
completed his training as a cannon crewman.

3.  Nonjudicial punishment (NJP) was imposed against the applicant on 8
June 1977, for wrongfully having in his possession one ounce, more or less,
of marijuana.  His punishment consisted of a forfeiture of pay for 2
months.

4.  On 15 September 1977, he was promoted to the pay grade of E-2; and he
was promoted to the pay grade of E-3 on 15 March 1978.




5.  The applicant was convicted by a special court-martial on 28 August
1978, of being absent without authority (AWOL) from 7 June 1978 until 31
July 1978.  He was sentenced to confinement at hard labor for 75 days; to
be reduced to the pay grade of E-1, and a forfeiture of $75.00 per month
for 3 months.

6.  On 9 November 1978, the applicant was notified that he was being
recommended for discharge under the provisions of Army Regulation 635-200,
chapter 14, for misconduct, due to frequent incidents of a discreditable
nature.  The commander cited his conviction by a special court- martial;
his record of NJP; his poor attitude; his failure to react constructively
to the rehabilitation program; and numerous counselings as the basis for
the recommendation for discharge.  The applicant acknowledged receipt of
the notification and after consulting with counsel, he requested
consideration of his case before a board of officers.

7.  A board of officers convened on 4 December 1978, to determine whether
the applicant should remain in the service or be administratively
separated.  The board recommended that the applicant be eliminated from the
service for misconduct with the issuance of a discharge under other than
honorable conditions.

8.  The appropriate authority approved the recommendation for discharge on
8 December 1978.  Accordingly, on 11 December 1978, the applicant was
discharged under other than honorable conditions, under the provisions of
Army Regulation 635-200, chapter 14, for misconduct, due to frequent
incidents of a discreditable nature with military authorities.  He had
completed 1 year, 6 months, and 7 days of total active service.

9.  A review of the available records fails to show that the applicant ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that board's 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for separating members for misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense, convictions by civil authorities,
desertion or absence without leave.  Action will be taken to separate a
member for misconduct when it is clearly established that rehabilitation is
impracticable or is unlikely to succeed.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

3.  The applicant's contentions have been noted.  However, the fact that he
desires to get care administered through the VA is not a sufficient
justification for granting the requested relief.  He was convicted by
special court-martial for being AWOL and he had NJP imposed against him for
possession of marijuana.  Considering the nature of his offenses, it does
not appear that his discharge under other than honorable conditions is too
harsh.

4.  In order to justify correction of a military record the applicant must
show 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.  In view of the foregoing, there is no basis for granting the
applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__PMS__  __REB_ _  __RCH__  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.



                                  ____Paul M. Smith_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070005023                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070828                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  626  |144.6000/MISCONDUCT                     |
|2.  656                 |144.6400/FRQNT INVOLVEMENT W/ AUTH      |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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