RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 April 2005
      DOCKET NUMBER:  AR20040006480


      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. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. Larry C. Bergquist            |     |Member               |
|     |Mr. Larry J. Olson                |     |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 under other
than honorable conditions to an honorable discharge.

2.  The applicant states, in effect, that he was a squared away Soldier and
one of the best at his job.  He states that his downfall came when he
accepted a ride from two Soldiers in his platoon.  The vehicle they were in
was pulled over and they all were charged with possession of drugs.

3.  The applicant continues that he was not in possession of drugs.  He
further states even though his drug test came back negative he was still
given an Article 15.  He concludes that he would like to have his discharge
upgraded so that he may use his veteran benefits and can go back to school.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 7 August 1989.  The application submitted in this case is dated
8 August 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 16 July 1986 and
successfully completed basic training and advanced individual training.  He
was awarded military occupational specialty 62B (Construction Equipment
Repairman).

4.  On 5 May 1987, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for operating a
privately owned vehicle (POV) while drunk.

5.  On 16 June 1988, the applicant accepted NJP under Article 15, UCMJ for
wrongfully operating a POV without a license.

6.  On 1 January 1989, the applicant accepted NJP under Article 15, UCMJ
for wrongful use of marijuana.

7.  On 6 February 1989, the applicant accepted NJP under Article 15, UCMJ
for possession of three pieces of marijuana in hashish form.

8.  On 5 May 1989, the applicant’s commander signed an elimination packet
on the applicant for separation under the provisions of chapter 14 of Army
Regulation 635-200 (Personnel Separations), for misconduct – pattern of
misconduct.  The reason cited by the commander was the applicant’s four
instances of field grade Article 15s, with twelve instances of counseling,
and his use and possession of a controlled substance (marijuana).  The
applicant was advised of his rights and the commander recommended the
applicant receive a under other than honorable conditions discharge.

9.  On 8 May 1989, the applicant was advised by consulting counsel of the
basis for the contemplated separation action.  He was advised of the impact
of the discharge action.  He signed a statement indicating that he was
advised he was being recommended for discharge under the provisions of Army
Regulation 635-200.  He declined counsel, waived his right to be heard by a
board of officers, and submitted a statement on his own behalf.

10.  The applicant stated, in effect, that he had made some mistakes in the
past and that he came into the Army to make something of himself and serve
his country.  He stated that he gave 100% to do a good job for his unit and
that proficiency and motivation were his strongest points.

11.  The applicant further stated that he had a wife and young son and
wanted to fulfill his obligation to them as a husband and father.  He
requested, if possible, to a rehabilitation transfer so that he could start
off fresh and become a productive and effective Soldier.  He concluded if
the approving authority decided not to retain him in the Army that he or
she would not let him start off in civilian life with a bad discharge.

12.  On 11 July 1989, the appropriate authority approved the recommendation
and directed the applicant receive a discharge under other than honorable
conditions under the provisions of chapter 14 of Army Regulation 635-200
for misconduct.  On 24 July 1989, he was separated from the service after
completing 3 years and 22 days of creditable active service and had no lost
time.




13.  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.

14.  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.

15.  Army Regulation 635-200, paragraph 3-7, 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.  Records show that the applicant received four field grade Article 15s,
with twelve instances of counseling, and used and possessed a controlled
substance during his military service.  He was not separated based on one
isolated incident of misconduct.  Based on these facts, the applicant’s
service clearly did not meet the standards of acceptable conduct and
performance of duty for Army personnel that are required for issuance of a
general or 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 7 August 1989; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 6 August 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

__ RJW  _  __LCB  _   __ LJO _   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                 |AR20040008042                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |19 April 2005                           |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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