RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 February 2005
      DOCKET NUMBER:  AR20040004389


      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 that he be granted a military retirement.  In
effect, he is asking that his records be corrected to show that he earned
20 qualifying years of creditable service for non-regular retired pay.

2.  The applicant states in correspondence to his Representative in
Congress:

      a.  He served 19 years, 7 months and 29 days and was denied
retirement because he was discharged under the provisions of chapter 10,
Army Regulation (AR) 635-200 after testing positive for drugs.

      b.  No effort was made to rehabilitate him.

3.  The applicant provides:

      a.  A copy of 19 November 1999 ARPC Form 606-E (Statement of Service
with Retirement Points) showing participation points in the US Army Reserve
(USAR) giving him 6 qualifying years of creditable service for non-regular
retired pay.

      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 10 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 inducted into the Army of the United States on 3
March 1970.  He served until honorably separated on 23 February 1973 with 2
years, 11 months and 23 days of creditable active Federal service.  He was
assigned to the US Army Reserve (USAR) Control Group (Reinforcement) upon
separation.

4.  The record shows that the applicant joined a USAR Troop Program Unit
(TPU) a year after his release from active duty.  Between March 1974 and
March 1980, he earned 6 qualifying years of creditable service in the USAR
toward non-regular retired pay.  This information is based on the 19
November 1999 ARPC Form 606-E submitted by the applicant and also found in
his service records.

5.  On 15 January 1981, the applicant, now a Staff Sergeant (SSG/E-6),
enlisted in the LAARNG.  On 12 July 1981, he was reduced one grade to the
rank of Sergeant (SGT/E-5).  He regained promotion to SSG on 8 August 1983,
and was promoted to SFC on 12 December 1985.

6.  On 30 November 1990, the applicant was ordered to active duty in
support of Operation Desert Shield/Desert Storm and directed to report to
Fort Polk.  At Fort Polk, he tested positive for cocaine use during the
period 7-13 February 1991.  Court-martial charges were preferred against
him on 3 April 1991.

7.  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.

8.  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 a total of 17 years, 6 months and 6 days of
prior inactive service.
9.  The applicant was discharged from the LAARNG and as a Reserve of the
Army on 15 October 1991 and issued NGB Form 22.  In preparation for his
discharge, he was issued an Army National Guard Retirement Points History
Statement on 3 June 1991.  This document shows that, between 15 January
1981 and 15 January 1991, he earned 10 years of creditable service in the
LAARNG toward non-regular retired pay.

10.  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.

11.  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.

12.  Army Regulation 135-180 (Qualifying Service for Retired Pay Non-
Regular Service) implements statutory authorities governing the granting of
"retired pay" to soldiers and former Reserve components soldiers.  Chapter
2 provides eligibility criteria and states, in pertinent part, that in
order to qualify for non-regular retirement, a member must have attained
age 60, completed a minimum of 20 years of qualifying service and served
the last 8 years of his or her qualifying service as a Reserve Component
(USAR or ARNG) soldier.  Paragraph 2-8 defines qualifying service and
states, in pertinent part, that a Reserve Component soldier must earn a
minimum of 50 retirement points each retirement year to have that year
credited as qualifying service.

13.  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.  A review of pertinent records in the applicant's service record shows
that his creditable service for non-regular retired pay consists of 3
years, 5 months and 7 days of active service, 6 years of service in the
USAR, and 10 years of service in the LAARNG.  Total creditable service for
non-regular retired pay equals 19 years, 5 months, and 7 days.  The
applicant falls short of the required 20 years of creditable service.

2.  The applicant was a senior NCO, yet he chose to use illegal drugs.  By
violating the Army's policy not to possess or use illegal drugs, he
compromised the special trust and confidence placed in him as an NCO.  The
applicant had a duty to support and abide by the Army's drug policies.  By
abusing illegal drugs, he knowingly risked his military career and future
retirement, violated the trust and confidence placed in him as an NCO, and
diminished the quality of service below that meriting a fully honorable
discharge.

3.  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.  His 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 ADRB's upgrade of the applicant's discharge from UOTHC to general
is more than adequate given the serious nature of his offense.  To further
diminish or dismiss the misconduct he committed by qualifying him for the
non-regular retirement that he so carelessly jeopardized through his drug
abuse would be inappropriate.

5.  There is no error or injustice in this case.

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                 |AR20040004389                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050223                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |136.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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