RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        16 June 2005
      DOCKET NUMBER:  AR20040006473


      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. David S. Griffin              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. Kenneth W. Lapin              |     |Member               |
|     |Ms. Delia R. Trimble              |     |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 under other than
honorable conditions be upgraded and that his pay grade be upgraded to E-3.

2.  The applicant states, in effect, that the drug test was unreliable and
that he was not given the opportunity to prove that he was innocent of the
charges of drug abuse.  He states that he was unjustly accused and
punished.

3.  The applicant provides no documents or other evidence in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 7 May 1986, the date of his discharge.  The application
submitted in this case is dated 7 August 2004 and was received on 1
September 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's military records show he enlisted on 22 May 1984 for a
period of 3 years and 13 weeks.  He successfully completed basic combat and
advanced individual training and was awarded the military occupational
specialty 13B10 (cannon crewmember).  The highest grade the applicant held
was private first class/paygrade E-3.

4.  The applicant accepted nonjudicial punishment (NJP) under Article 15,
Uniform Code of Military Justice (UCMJ), on 25 November 1985 and 14 March
1986.  His offenses included wrongful use of marijuana on 21 August 1985
and 20 September 1985 and during the period from 16 November 1985 to
15 December 1985.  On 25 November 1985, the applicant was reduced to
paygrade E-1.  The applicant did not appeal either one of the NJPs.

5.  On 3 March 1986, the applicant was evaluated by a captain of the
Medical Corps.  The examiner found that the applicant met the physical
retention standards prescribed in Army Regulation 40-501 (Standards of
Medical Fitness). The examiner further determined that the applicant was
mentally responsible, able to distinguish right from wrong, able to adhere
to the right, and had the mental capacity to understand and participate in
proceedings.

6.  On 27 March 1986, the applicant's commander notified him that he was
initiating action to discharge him under the provisions of Chapter 14 of
Army Regulation 635-200 due to drug abuse and that such discharge could
result in an honorable discharge, general discharge, or an under other than
honorable conditions discharge.

7.  The commander advised the applicant of his right to have his case
considered by a board officers; to appear in person before a board
officers; to submit statements in his own behalf; to be represented by
counsel; to waive any of these rights; and to withdraw any waiver of rights
at any time prior to the date the discharge authority directs or approves
his discharge, and request his case be presented before a board of
officers.

8.  On 27 March 1986, the applicant's commander recommended him for
discharge due to drug abuse.  The commander stated that the applicant had
two positive tests for a Schedule I Controlled Substance.

9.  On 7 April 1986, the applicant submitted a statement acknowledging that
he had been advised by counsel of the basis for the contemplated action
against him under the provisions of Chapter 14 of Army Regulation 635-200
for misconduct - drug abuse.  The applicant waived consideration by a board
of officers and waived a personal appearance.  The applicant stated that he
was not submitting statements in his own behalf and that he waived counsel.


10.  The applicant also acknowledged that, as the result of issuance of an
discharge under conditions other than honorable he may be ineligible for
many or all benefits as a veteran under both federal and state laws, and
that he may expect to encounter substantial prejudice in civilian life.

11.  On 28 April 1986, the appropriate authority approved the
recommendation for discharge due to misconduct - drug abuse and directed
the applicant be issued an Under Other Than Honorable Conditions
Certificate.

12.  On 7 May 1986, the applicant was discharged under the provisions of
chapter 14 of Army Regulation 635-200 due to misconduct - drug abuse with a
characterization of service of under other than honorable conditions.  He
had
1 year, 11 months, and 16 days active service.

13.  There is no indication that the applicant applied to the Army
Discharge Review Board (ADRB) for an upgrade of his discharge within the
ADRB's 15-year statue of limitations.

14.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 of the regulation deals with
separation for various types of misconduct, which includes drug abuse, and
provides that individuals identified as drug abusers may be separated prior
to their normal expiration of term of service. Individuals in pay grades E-
5 and above must be processed for separation upon discovery of a drug
offense.  Those in pay grades below E-5 may also be processed after a first
drug offense and must be processed for separation after a second offense.
The issuance of a discharge under other than honorable conditions is
normally considered appropriate.

15.  The Table of Maximum Punishments of The Manual for Courts-Martial,
United States, 1969 (Revised edition) shows that the maximum punishment for
the wrongful use of marijuana is a dishonorable discharge, forfeiture of
all pay and allowances, and 2 years confinement.

16.  Army Regulation 635-200 (Personnel Separations) 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.  Whenever there is doubt, it is to be
resolved in favor of the individual.

17.  Army Regulation 635-200 provides that a general discharge is a
separation from the Army under honorable conditions.  When authorized, it
is issued to a soldier whose military record is satisfactory but not
sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was unjustly accused and punished, that
he was not given the opportunity to prove that he was innocent of the
charges of drug abuse that his discharge under other than honorable
conditions be upgraded and that his paygrade be upgraded to E-3.


2.  The applicant did not appeal either of his NJPs that he received under
Article 15.  During the Article 15 hearing on November 1985, the applicant
did not present any matters in defense, mitigation, and/or extenuation.

3.  When the applicant was notified he was being processed for discharge,
he waived his right to an administrative board hearing, the right to appear
before an administrative hearing, and his right to representation by
counsel.

4.  If the applicant had been referred to court-martial he could have
received a dishonorable discharge, forfeiture of all pay and allowances and
2 years confinement.

5.  Therefore, the evidence does not support the applicant's contention
that he was unjustly punished and that he did not have the opportunity to
prove his innocence.

6.  Evidence shows that the applicant was properly and equitably discharged
in accordance with regulations in effect at the time.  The type of
discharge directed and the reasons for separation were appropriate
considering all the facts of the case.  The records contain no indication
of procedural or other errors that would tend to jeopardize his rights.

7.  In order to justify correction of a military record the applicant must,
or it must otherwise satisfactorily appear, that the record is in error or
unjust.  The applicant has failed to submit evidence that would satisfy
that requirement.

8.  A review of the applicant's record of service, shows the applicant did
not meet the standards of acceptable conduct and performance of duty for
Army personnel.  The applicant's entire record of service was considered.
There is no record or documentary evidence of acts of valor, achievement,
or service that would warrant special recognition.

9.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 7 May 1986, the date of his discharge;
therefore, the time for the applicant to file a request for correction of
any error or injustice expired on 6 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

__RJW__  __KWL__  __DRT    _ 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.




                                  ____Raymond J. Wagner   _
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040006473                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050616                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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