RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        2 JUNE 2005
      DOCKET NUMBER:  AR20040004783


      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             |
|     |Mr. Kenneth H. Aucock             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Thomas O'Shaughnessy          |     |Member               |
|     |Ms. Marla Troup                   |     |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.  In effect, the applicant requests that his discharge under other than
honorable conditions be upgraded to general or honorable.

2.  In effect, the applicant states that his decorations, awards, medals,
and badges; and military education completed, show that he deserves that
his discharge be upgraded.

3.  The applicant provides no evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 28 June 1989.  The application submitted in this case is
dated         27 July 2004.

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.  The applicant enlisted in the Army for three years on 26 July 1979 and
remained on continuous active duty until his discharge.  He was trained as
a cannoneer.  He had more than 5 years of service in Germany, and was
assigned at Fort Riley, Kansas when he was discharged.

4.  The applicant completed the Primary NCO (noncommissioned officer)
Course and the Basic NCO Course (BNCOC).  He was promoted to sergeant in
November 1983, reduced to specialist four in January 1987, and promoted to
sergeant again in October 1987.  His awards include the Army Good Conduct
Medal (three awards), two awards of the Army Achievement Medal, the Army
Service Ribbon, and the Overseas Service Ribbon.

5.  The applicant was AWOL (absent without leave) from 17 March 1980 until
his return to duty on 22 March 1980.  On 2 June 1981 he received
nonjudicial punishment under Article 15, UCMJ (Uniform Code of Military
Justice) for failure to go to his appointed place of duty on two occasions.
 On 5 January 1987 he received nonjudicial punishment for failure to go to
his appointed place of duty and for dereliction of duty.

6.  On 6 February 1989 the applicant received an administrative reprimand
for drug abuse.  On 22 February 1989 he received nonjudicial punishment for
wrongful use of marijuana and was reduced to pay grade E-4.

7.  On 28 June 1989 the applicant was discharged at Fort Riley under other
than honorable conditions for misconduct-abuse of illegal drugs, under the
provisions of Army Regulation 635-200, paragraph 14-12c.

8.  The applicant’s discharge proceedings are not available to the Board.

9.  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.  Paragraph 14-
12c states that Soldiers are subject to separation for commission of a
serious military or civil offense, if the specific circumstances of the
offense warrant separation and a punitive discharge would be authorized for
the same or a closely related offense under the MCM.  Paragraph 14-12c(2)
states that abuse of illegal drugs is serious misconduct and that first
time drug offender, grades E-5, e.g., sergeant - E-9, will be processed for
separation upon discovery of a drug offense.  A discharge under other than
honorable conditions is normally appropriate for a Soldier discharged for
misconduct.

 DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant wrongfully used marijuana.
Consequently, separation processing was mandated.  Due to the passage of
time the facts and circumstances concerning the applicant’s administrative
discharge are not on file.  The Board presumes administrative regularity in
the processing of the applicant’s discharge.  There is nothing in the
available records or in anything submitted by the applicant to overcome
that presumption.

2.  The applicant’s years of service, decorations awarded, and military
education, are noted.  None of these factors, however, warrant the relief
requested.  The applicant has submitted neither probative evidence nor a
convincing argument in support of his request.  Thus, his request to
upgrade his discharge is not granted.
3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 June 1989; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         27 June 1992.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___FE __  ___TO___  ___MT __  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 Eichorn________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040004783                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050602                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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