RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          23 August 2005
      DOCKET NUMBER:  AR20040009797


      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. W. W. Osborn, Jr.             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. William D. Powers             |     |Member               |
|     |Ms. Marla J. N. Troup             |     |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 general discharge be upgraded.

2.  The applicant states he is now in a position to get on with his life in
a positive direction and his is requesting an upgrade for future
considerations.

3.  The applicant provides an additional statement to the effect the real
reason he was separated is not shown on his DD Form 214 (Certificate of
Discharge from Active Duty).  The issue was brought up months after the
punishment from the nonjudicial punishment (NJP) imposed under Article 15,
Uniform Code of Military Justice.  He volunteered to leave after serving
his punishment.  The discharge was based upon one incident in 28 months of
service.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 18 May 1993.  The application submitted in this case is
dated 24 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 limitation 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 received an enlistment waiver for two alcohol related
convictions and entered active duty on 6 April 1991.  He completed training
as an infantryman and was posted to Korea where he was advanced to pay
grade E-4 and served a year without a discreditable incident of record.  He
was reassigned to Fort Campbell, Kentucky on 15 September 1992.

4.  On 28 December 1992 the applicant submitted a urine sample that tested
positive for marijuana.  He was reduced to pay grade E-1 by NJP.  He was
arrested by civilian authorities for driving under the influence (DUI) on
30 January 1993.

5.  The applicant was counseled, on 23 February 1993 that his request for
discharge due to a bar to reenlistment had been disapproved because he was
going to be processed for elimination for illegal drug use.

6.  On 13 May 1993 the applicant's commander notified him of initiated
elimination proceedings for separation with a general discharge for
commission of a serious offense by using illegal drugs.  The applicant
consulted with counsel
and waived his rights to submit statements in his own behalf and to be
represented by counsel.  He also acknowledged that he could expect to
encounter substantial prejudice in civilian life because of a general
discharge.

7.  The separation authority directed that a general discharge be issued
under the provisions Army Regulation 635-200, paragraph 14-12c.

8.  On 18 May 1993 the applicant was separated with a general discharge.

9.  Army Regulation 635-200 sets forth the policy and procedures for
separation of enlisted personnel.  Chapter 14 applies to separation for
misconduct.  Subparagraphs a, b and c apply to minor disciplinary
infractions, a pattern of misconduct and commission or a serious offence,
respectively.  Subparagraph 14-12c(2) states that abuse of illegal drugs is
a serious offense, but also provides that, if circumstance warrant, a singe
drug offense may be combined with other offense and the individual
separated for minor disciplinary offenses or a pattern of misconduct as
appropriate.  However the narrative reason in all such cases is to be,
"misconduct-abuse of illegal drugs."

10.  On 9 August 1996 the Army Discharge Review Board (ADRB) denied the
applicant's request to upgrade his discharge, but did decide to change the
narrative reason to simply, "Misconduct."

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 discharge was not based upon one incident.  Both using illegal
drugs and DUI are serious offenses.

4.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, 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 exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 9 August 1996.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 8 August 1999.  The
applicant did not file within the ABCMR's 3-year statute of limitations and
has not provided 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

__KAN __  __WDP__  __MJNT_  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.




            _Kathleen A. Newman_______
                    CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040009797                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050823                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19930518                                |
|DISCHARGE AUTHORITY     |AR635-200, chapter 10 . . . . .         |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |A70.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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