RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 February 2005
      DOCKET NUMBER:  AR20040002121


      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. Michael J. Fowler             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Thomas D. Howard              |     |Chairperson          |
|     |Mr. John Infante                  |     |Member               |
|     |Ms. Maribeth Love                 |     |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 discharge be upgraded from general
under honorable conditions to an honorable discharge.

2.  The applicant makes no additional statement.

3.  The applicant provides no documentation in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 15 May 1986.  The application submitted in this case is dated
17 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 enlisted in the Regular Army on 22 November 1983 and
successfully completed basic training and advanced individual training.  He
was awarded military occupational specialty 19E (Armor Crewman).

4.  On 15 January 1986, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for wrongful use
of marijuana.

5.  On 19 February 1986, the applicant underwent a mental evaluation by a
medical physician that determined that he could distinguish right from
wrong and that he possessed sufficient mental capacity to understand and
participate in administrative or judicial proceedings.

6.  A Standard Form 88 (Report of Medical History), dated 19 February 1986,
shows that the applicant was qualified for separation.

7.  A Standard Form 89 (Report Of Medical Examination), dated 19 February
1986, shows that the applicant was being separated and that his present
health was "good."

8.  On 22 April 1986, the applicant’s commander signed an elimination
packet on the applicant for separation under the provisions of Army
Regulation 635-200, chapter 14 for misconduct.  The reason cited by the
commander was that the applicant had been punished under Article 15, UCMJ
for violation of wrongful use of marijuana on three occasions.  The
applicant was advised of his rights and the commander recommended the
applicant receive a general discharge.

9.  On 9 April 1986, the applicant was advised by consulting counsel of the
basis for the contemplated separation action.  The applicant was advised of
the impact of the discharge action.  He was not entitled to have his case
heard by an administrative separation board.  The applicant also indicated
that he did not provide statements on his own behalf.

10.  On 22 April 1986, the appropriate authority approved the request and
directed the applicant receive a general discharge.

11.  On 15 May 1986, the applicant was discharged, with a general
discharge, in pay grade E-2, under the provisions of chapter 14 of Army
Regulation 635-200, for misconduct drug abuse.  He had completed 2 years, 5
months, and 24 days of creditable active service and had no lost time.

12.  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 and an unfit medical condition is
not the direct or substantial contributing cause of his misconduct.  A
discharge under other than honorable conditions is normally appropriate for
a Soldier discharged under this chapter.  However, the separation authority
may direct a general discharge if such is merited by the Soldier’s overall
record.

13.  Army Regulation 635-200, paragraph 3-7, 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 (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.




DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his general discharge be upgraded to an
honorable discharge.  The applicant's records show that he received three
Article 15s and separated from the service for drug abuse.  Based on these
facts, the applicant’s service clearly did not meet the standards of
acceptable conduct and performance of duty for Army personnel which are
required for issuance of an honorable discharge.

2.  Evidence shows that the applicant was properly and equitably discharged
in accordance with the regulations in effect at the time.

3.  In the absence of evidence to the contrary, it is determined that all
requirements of law and regulations were met and the rights of the
applicant were fully protected throughout the separation process.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 May 1986; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 14 May 1989.  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

__TDH __  __JI_____  __ML___  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.




                                  ___ Mr. Thomas D. Howard _
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040002121                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |17 February 2005                        |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]