RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            22 SEPTEMBER 2005
      DOCKET NUMBER:   AR20040009596


      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. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Mr. Bernard Ingold                |     |Member               |
|     |Mr. Michael Flynn                 |     |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 under other than honorable
conditions be upgraded to an honorable or a general discharge.

2.  The applicant states that he would like to have his discharge upgraded
so that he can get some type of benefits after 15 years of dedication to
the military and himself.

3.  The applicant provides no additional documentation in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 17 October 1986.  The application submitted in
this case is dated 25 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.  On 30 September 1971, he enlisted in the Army in Philadelphia,
Pennsylvania, for 2 years, in the pay grade of E-1.  He successfully
completed his training as a food service specialist.  He remained on active
duty through a series of continuous enlistments.

4.  The applicant was promoted to the pay grade of E-2 on 30 January 1972,
to the pay grade of E-3 on 11 February 1972, to the pay grade of E-4 on 3
May 1972, to the pay grade of E-5 on 28 June 1974 and to the pay grade of E-
6 on 7 June 1981.

5.  The available records show that the applicant was assigned to Company
P, 2nd Battalion, Fort Lee, Virginia, and that during a command directed
inspection, he submitted a urine specimen on 7 June 1986, which tested
positive for cocaine and marijuana.  The applicant's commanding officer was
notified of the preliminary findings on 3 July 1986.
6.  On 7 August 1986, the applicant was notified that charges were pending
against him for wrongfully using cocaine and for wrongfully using
marijuana.  He acknowledged receipt of the notification and after
consulting with counsel; he submitted a request for discharge under the
provisions of Army Regulation 635-200, chapter 10, for the good of the
service in lieu of trial by court-martial.  Along with his request for
discharge, the applicant opted to submit a statement in his own behalf.

7.  In the statement he indicated that he had served honorably for 15 years
and that he had always done his best at whatever he was assigned.  He
stated that he had a wife and four children and that he was aware of the
legal problems surrounding his case as one jury had already rejected the
reliability of the test and acquitted another Soldier.  He stated that he
could not afford the $2,000.00 the other Soldier spent on his civilian
lawyer, or the possibility of going to jail leaving his family destitute.
He went on to state that it did not seem fair that because he opted to stay
with his Army lawyer and to submit his request for discharge before the
other Soldier's acquittal, that he should be the one to suffer bad
consequences.  He stated that the discharge itself was a terrible penalty
to pay.  The applicant stated that he had recently reenlisted in the Army
for 6 years and that 6 years would put him over the 20-year mark making him
retirement eligible.  He concluded his statement by asking that he be
considered for a general discharge so that he would be eligible for
unemployment compensation while he was seeking employment.  The applicant
also submitted letters from five individual attesting to his good conduct,
loyalty and good leadership quality.

8.  The appropriate authority approved the request for discharge on
1 October 1986 and directed the issuance of a discharge under other than
honorable conditions.  Accordingly, on 17 October 1986, the applicant was
discharged, under other than honorable conditions, under the provisions of
Army Regulation 635-200, chapter 10, for the good of the service in lieu of
trial by court-martial.  He had completed over 15 years of net active
service.

9.  A review of the available records fails to show that the applicant ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that board's 15-year statute of limitations.

10.  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
submit a request for discharge for the good of the service in lieu of trial
by court-martial.  The request may be submitted at any time after charges
have been preferred and must include the individual's admission of guilt.
Although an honorable or general discharge is authorized, a discharge under
other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors, which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

3.  The applicant’s desire to become eligible for post service benefits has
been noted.  However, that in itself is not a sufficient basis for granting
the requested relief.  The evidence of record shows that he was afforded an
opportunity to stand trial by a court-martial and he opted not to do so and
nowhere in the statement that he submitted with his request for discharge,
did he deny ever using cocaine and marijuana.  Considering the nature of
his offenses, it does not appear that his discharge under other than
honorable conditions is too harsh.

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 this requirement.

5.   Records show the applicant should have discovered the alleged error or
injustice now under consideration on 17 October 1986; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 16 October 1989.  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

_____JA_  ___BI ___  ___MF __  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.




                                  ____  John Anderholm___________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040009596                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050922                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19861017                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |CHAPTER 10                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES         1.  689  |144.7000/FOR THE GOOD OF THE SERVICE    |
|2.  643                 |144.6770/ILLEGAL USE OF DRUGS           |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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