RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           2 March 2004
	DOCKET NUMBER:   AR2003091226

	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	
	Ms. Carolyn Wade		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Robert L. Duecaster		Member	

	The applicant and counsel if any, did not appear before the Board.

	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, an upgrade of his discharge to an honorable or a medical discharge.

2.  The applicant states that he was told by the [Staff] Judge Advocate General's Office that, upon his request, he would be given a medical discharge.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) for the period 13 September 1974 to 30 April 1975.

4.  The applicant also provides a copy of radiographic report of an injury to his hip, dated 24 September 1974.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error or injustice which occurred on 30 April 1975.  The application submitted in this case is dated 9 May 2003.  

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's military records show he enlisted in the Regular Army on 13 September 1974 for 3 years.  The applicant completed basic combat training at Fort Ord, California and was assigned to Fort Belvoir, Virginia for advanced individual training.  

4.  On 14 January 1975, the applicant was referred to the Belvoir House Drug Abuse Program by his unit for evaluation of drug abuse.  The applicant was evaluated by a psychiatric social worker who stated that it was evident that the applicant had been using drugs for an extended period of time.  It was recommended that the applicant be admitted to the Belvoir House as an inpatient; however, he begged not to be admitted and was, instead, referred to Mental Hygiene for further evaluation.  Mental Hygiene concurred with the diagnosis of the staff of the Belvoir House Program that the applicant needed long-term, intensive care of a nature not provided by the Army.  It was recommended that his unit consider administrative separation and that he be given treatment by an outside agency such as a Veterans Administration Hospital, if so warranted.

5.  On 27 February 1975, the applicant's unit commander recommended him for discharge from the service under the provisions of paragraph 13-5a(3)(b), Army Regulation 635-200, by reason of unfitness with a general, under honorable conditions discharge.  He stated that his reason for recommending discharge was the applicant's diagnosis of an inadequate personality, chronic, severe, with immaturity, impulsiveness, and poly drug abuse.  He also stated that the applicant's lack of usefulness to the military made him more of a liability than an asset.  The chain of command concurred with the recommendation.

6.  On 10 March 1975, the applicant, having been advised of his rights by consulting counsel, waived consideration of his case by a board of officers and did not submit a statement in his own behalf.

7.  On 28 March 1975, the appropriate authority approved the applicant's discharge with a general, under honorable conditions discharge.  Accordingly, on 30 April 1975, the applicant was discharged with a general, under honorable conditions discharge.  He was credited with 7 months and 20 days of active military service and no lost time.  He was credited with the National Defense Service Medal as his only award.  

8.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 13 established the policy and prescribed the procedures for separating individuals for unfitness or unsuitability. Paragraph 13-5a provided for the separation of individuals determined to be unfit for further military service.  A general or honorable discharge was normally considered appropriate for members separated for unfitness by reason of personal drug use/possession.

9.  There is no evidence of record that the applicant was told by the [Staff] Judge Advocate General's Office that he would be given a medical discharge upon his request.

10.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The type of discharge was commensurate with the applicant's overall record of service.

2.  The evidence of record does not show that the applicant had a medical condition that required him to be discharged through medical channels and the Board did not find any basis for changing his discharge to a medical discharge.
3.  The Board noted that the applicant’s chain of command tried to assist him in performing and conducting himself to Army standards by providing drug counseling and medical treatment for drug abuse; however, the applicant failed to respond appropriately.  

4.  The applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the trust and confidence placed in a Soldier.  The applicant, as a Soldier, had the duty to support and abide by the Army's drug policies.  By abusing illegal drugs, the applicant knowingly risked a military career and diminished the quality of service below that meriting a fully honorable discharge.  

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 April 1975; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 29 April 1978.  However, 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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__fne___  __aao___  __rld___  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.

			Fred N. Eichorn
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2003091226	
SUFFIX		
RECON		
DATE BOARDED	20040302	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19750430	
DISCHARGE AUTHORITY	AR 635-200, Chap 13. . . . .  	
DISCHARGE REASON	A40.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.0000	
2.		
3.		
4.		
5.		
6.