RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        09 AUGUST 2005
      DOCKET NUMBER:  AR20040008914


      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             |
|     |Ms. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Barbara Ellis                 |     |Chairperson          |
|     |Mr. Kenneth Wright                |     |Member               |
|     |Mr. Patrick McGann                |     |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 records be corrected by upgrading his
discharge.

2.  The applicant states that he was young and misinformed by counsel.  At
the time he did not realize how his decision would affect his ability to
get a job and the effects it would have on his self-esteem.

3.  He states that his situation started with a surprise drug inspection
where a small amount of marijuana was discovered in his room.  He admitted
that the marijuana was his believing that he would get an Article 15;
however, he later learned that LSD was also found, and he was charged with
possessing those drugs as well.  He was threatened with being sent to Fort
Leavenworth for as long as 15 years or more.  He requested counsel and was
advised to initiate a request for discharge, and that was the choice he
made.

4.  He feels he was poorly represented by counsel and did not fully
understand the implications of his discharge request, and feels he was not
fully advised of his options.  He is currently drug and alcohol free, is
now unemployed from a job he held for 9 years, and is living with his
parents.

5.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
 4 November 1983, at the age of 21.  The application submitted in this case
is dated 1 October 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 18 September 1980 for a
period of 3 years.  He served in Germany from February 1982 to November
1983.
4.  On 29 October 1982, he accepted nonjudicial punishment (NJP) under the
provisions of Article 15, Uniform Code of Military Justice (UCMJ) for the
wrongful possession of one gram of marijuana.  His punishment was
reduction, extra duty and a forfeiture of pay.

5.  On 13 December 1982, he accepted NJP under the provisions of Article
15, UCMJ for operating a vehicle at a high rate of speed while drunk, and
for having in his possession drug paraphernalia, two smoking devices and a
knife which tested positive for drugs.  His punishment was reduction, extra
duty, restriction and a forfeiture of pay.

6.  Documents in the applicant’s record indicate he was absent without
leave (AWOL) from 30 October 1981 to 4 November 1981.

7.  The facts and circumstances surrounding the applicant’s discharge
proceedings are not in the available records, however, on 4 November 1983,
he was discharged under the provisions of Army Regulation 635-200, Chapter
10.  His DD Form 214 (Certificate of Release or Discharge form Active Duty)
indicates he was discharged for the good of the service in lieu of court-
martial.

8.  Army Regulation 635-200, then in effect, set forth the basic authority
for the separation of enlisted personnel.  Chapter 10 of that regulation
provided, in pertinent part, that a member who had committed an offense or
offenses for which the authorized punishment included a punitive discharge
could at any time after the charges had been preferred, submit a request
for discharge for the good of the service in lieu of trial by court-
martial.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the
discharge proceedings were conducted in accordance with law and regulation
applicable at the time.

2.  The applicant voluntarily requested separation under Army Regulation
635-200, Chapter 10, for the good of the service, to avoid trial by court-
martial.

3.  The applicant has failed to submit evidence in support of his
allegations that he was young, falsely accused of drug possession, and was
poorly represented and misinformed by counsel.  The Board notes that the
applicant was 21 years of age at the time of his enlistment and nearly 24
years of age at the time of his first offense for drug possession.

4.  In order to justify correction of a military record the applicant must
show, 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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 4 November 1983; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
3 November 1986.  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

___BE __  ___KW __  ___PM __  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.




                                  ______Barbara Ellis_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040008914                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050809                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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