RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        9 August 2005
      DOCKET NUMBER:  AR20040009540


      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:

|     |Ms. Barbara J. Ellis              |     |Chairperson          |
|     |Mr. Kenneth L. Wright             |     |Member               |
|     |Mr. Patrick H. McGann Jr.         |     |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 honorable
conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, that:

      a.  he was told by a Judge Advocate General (JAG) officer that his
discharge under honorable conditions would be automatically upgraded to an
honorable discharge 3 years from his separation date;

      b.  he was discriminated against by his commander and platoon
sergeant because of an automobile accident that precluded his full
participation in field exercises;

      c.  he was unable to perform the duties of his military occupational
specialty (MOS) 11B1P (infantryman) because of the residuals of a back
injury suffered in an automobile accident.  He requested a change of his
MOS but was denied by his commander and platoon sergeant.

      d.  he was forced to perform duties beyond his ability, because of
his back.  He sought counsel from the base chaplain; and

      e.  he erred in judgment when he attended a civilian party where
illegal drugs were being used without his knowledge.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
2 March 1988, the date of his discharge.  The application submitted in this
case is dated 22 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's military records show he enlisted on 3 January 1985 for
a period of 3 years.  He successfully completed basic combat and advanced
individual training and was awarded the military occupational specialty
11B10 (infantryman).

4.  On 18 September 1986, the applicant accepted nonjudicial punishment
(NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for
wrongful use of cocaine between 19 July 1986 and 19 August 1986.

5.  On 5 February 1988, the applicant accepted NJP under Article 15, UCMJ,
for wrongful use of cocaine on 7 January 1988.

6.  On 17 February 1988, the applicant was evaluated by a major of the
Medical Service 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.  The examiner also noted that the applicant was
not motivated for further military service.

7.  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 misconduct - abuse of illegal drugs and that
such discharge could result in a general discharge (under honorable
conditions).

8.  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 directed or approved
his discharge, and request his case be presented before a board of
officers.

9.  On 18 February 1988, 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 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 honorable conditions, he may expect to encounter
substantial prejudice in civilian life.
11.  On 18 February 1988, the applicant's commander recommended him for
discharge due to misconduct - abuse of illegal drugs.  The commander
recommended a general discharge under honorable conditions.

12.  On 22 February 1988, the appropriate authority approved the
recommendation for discharge due to misconduct - abuse of illegal drugs and
directed the applicant be issued a general discharge with a
characterization of service as under honorable conditions.

13.  On 2 March 1988, the applicant was discharged under the provisions of
chapter 14 of Army Regulation 635-200 due to misconduct - abuse of illegal
drugs.  He had completed 3 years and 2 months of active service
characterized as under honorable conditions (general).  He was discharged
in the grade of private/pay grade E-2.

14.  A review of the applicant's medical records showed that he had
received treatment for lower back pain from November 1985 to 13 January
1988.

15.  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.

16.  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.

17.  Army Regulation 635-200 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was told by a JAG officer that his
discharge would be automatically upgraded to honorable.  However, the
applicant has not submitted any evidence to support this contention.

2.  The U.S. Army does not have, nor has it ever had, a policy to
automatically upgrade discharges.  Each case is decided on its own merits
when an applicant submits an application to either the Army Discharge
Review Board or the ABCMR requesting change in discharge.  Changes may be
warranted if the ABCMR determines that the characterization of service or
the reason for discharge or both were improper or inequitable.  The Defense
Discharge Review Standards specifically state that no factors should be
established that require automatic change or denial of a change in
discharge.

3.  The applicant's contentions of discrimination by his commander and his
platoon sergeant because of his automobile accident; attempts to change his
MOS; and his treatments for his back pain were not considerations in the
processing of his discharge.

4.  The applicant was processed for discharge under the mandatory
provisions of Chapter 14 of Army Regulation 635-200 for second-time drug
offenders.

5.  The applicant was advised of the effects of a general discharge.  The
applicant was afforded the opportunity to consult with counsel and submit
statements in his own behalf, but he declined to do so.

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.  Based on all of the foregoing, there is insufficient basis to upgrade
the applicant's discharge.

10.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 2 March 1988, the date of his
discharge; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 1 March 1991.  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

___klw___  ____phm  ___bje___  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 J. Ellis________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040009540                           |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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