RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 February 2005
      DOCKET NUMBER:  AR20040001505


      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. Robert J. McGowan             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Hubert O. Fry, Jr.            |     |Chairperson          |
|     |Ms. Marla J. N. Troup             |     |Member               |
|     |Mr. Peter B. Fisher               |     |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:

      a.  He had 5 months remaining to qualify for a 20-year retirement
when he tested positive for drugs in March 1991.

      b.  He was not offered rehabilitation; he was transferred to another
unit and discharged 2 months later.

      c.  He was treated unfairly.

3.  The applicant provides:

      a.  A copy of 19 November 1999 ARPC Form 606-E showing participation
points in the US Army Reserve (USAR).

      b.  Copies of two DD Forms 214 (Certificate of Release or Discharge
From Active Duty) for the active duty period 30 November 1990 to 14 May
1991; one shows a character of service as under other than honorable
conditions, the other shows a character of service as under honorable
conditions (general).

      c.  A copy of DD Form 214 (Armed Forces of the United States Report
of Transfer or Discharge) for the active duty period 3 March 1970 to 23
February 1973.

      d.  A copy of NGB Form 22 (Report of Separation and Record of
Service) for the period 15 January 1981 to 15 October 1991.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 14 May 1991.  The application submitted in this case is
dated 5 May 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 was a Sergeant First Class (SFC/E-7) serving in the
Louisiana Army National Guard (LAARNG).  On 30 November 1990, he entered on
active duty and was assigned to Fort Polk, Louisiana.

4.  During a drug urinalysis test, the applicant tested positive for use of
cocaine during the period 7-13 February 1991.  Court-martial charges were
preferred against him on 3 April 1991.

5.  The applicant consulted with legal counsel on 3 May 1991.  After being
informed of the charges against him and the possible penalties if
convicted, he voluntarily, and in writing, requested discharge for the good
of the service in lieu of trial by court-martial under the provisions of
chapter 10, Army Regulation (AR) 635-200.  He was told that he could
receive an under other than honorable conditions (UOTHC) discharge.

6.  The applicant's chain of command recommended approval of his request
for discharge and recommended he be separated with a UOTHC discharge.  The
request was approved and the applicant was separated on 14 May 1991 under
the provisions of chapter 10, AR 635-200 with a UOTHC discharge.  He had
5 months and 14 days of creditable active Federal service during the period
under review and 2 years, 11 months and 23 days of prior creditable active
Federal service.  He also had 17 years, 6 months and 6 days of prior
inactive service.

7.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking
an upgrade of his discharge.  On 16 April 1997, the ADRB found the
applicant's UOTHC discharge inequitable given his years of service and
voted to upgrade it to general under honorable conditions.

8.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of that regulation provides,
in pertinent part, that a member who has committed an offense or offenses
for which the authorized punishment includes a punitive discharge may at
any time after the charges have been preferred, submit a request for
discharge for the good of the service in lieu of trial by court-martial.  A
discharge under other than honorable conditions is normally considered
appropriate.  However, at the time of the applicant’s separation the
regulation provided for the issuance of an undesirable discharge.
9.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the 3 year limit on filing to the
Army Board for Correction of Military Records (ABCMR) should commence on
the date of final action by the ADRB.  In complying with this decision, the
ABCMR has adopted the broader policy of calculating the 3-year time limit
from the date of exhaustion in any case where a lower level administrative
remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was an SFC with a lengthy period of service in the
LAARNG.  He tested positive for cocaine use on a unit urinalysis test.
Court-martial charges were properly brought against him and, after
consulting with legal counsel, he requested discharge in lieu of trial.

2.  The applicant's voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, for the good of the service, to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.  There is no indication that the
request was made under coercion or duress.

3.  The applicant's request for a chapter 10 discharge, even after
appropriate and proper consultation with a military lawyer, tends to show
he wished to avoid the court-martial and the punitive discharge that he
might have received.

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 an NCO, had the duty to support and abide by the Army's
drug policies.  By abusing illegal drugs, the applicant knowingly risked a
military career, violated the trust and confidence placed in him as an NCO,
and diminished the quality of service below that meriting a fully honorable
discharge.

5.  The ADRB's upgrade of the applicant's discharge from UOTHC to general
is more than adequate, given the nature of his offense and his service in
the LAARNG.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 April 1997, the date of the ADRB
action; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 15 April 2000.  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

__hof___  __mjnt__  __pbf___  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.



                                        Hubert O. Fry, Jr.
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040001505                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050223                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19910514                                |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |A60.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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