RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 September 2005
      DOCKET NUMBER:  AR20040011719


      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. Jeanie M. Biggs               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. John T. Meixell               |     |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 general discharge be upgraded to an
honorable discharge.

2.  The applicant makes no statement in support of his request.

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 21 December 1988.  The application submitted in this case is
dated
16 December 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 October 1986 for
a period of 4 years.  He successfully completed basic combat and advanced
individual training and was awarded the military occupational specialty
76C10 (equipment records and parts specialist).

4.  On 13 October 1988, DA Form 5130-R (Urinalysis Custody and Report
Records) shows that the applicant had two positive urinalysis for cocaine.

5.  On 21 November 1988, the applicant accepted nonjudicial punishment
(NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for
wrongful use of cocaine on or about 3 October 1988.

6.  The applicant was given a mental status evaluation by a lieutenant
colonel (Medical Corps).  The DA Form 3822-R (Report Of Mental Status
Evaluation) showed that the applicant was being considered for discharge
because of misconduct.

7.  The Evaluation Section of the report showed that the applicant’s
behavior was normal, he was fully alert, he was fully oriented and that his
mood was unremarkable.  This section further showed that the applicant’s
thinking process was clear, his thought content was normal, and his memory
was good.

8.  The Impressions Section of the report showed that in the opinion of the
examiner, the applicant had the mental capacity to understand and
participate in the proceedings, and was mentally responsible.  The examiner
further found that the applicant met the retention requirements of chapter
3 of Army Regulation
40-501 (Standards of Medical Fitness).

9.  On 5 December 1988, 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).  He also referred the applicant to the Alcohol and Drug Abuse
Prevention and Control Program (ADAPCP).

10.  The commander advised the applicant of his right 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.

11.  The applicant acknowledged 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 – abuse of illegal
drugs.  The applicant did not submit a statement in his own behalf (the
applicant stated that a statement on his behalf would be submitted.  The
commander gave him three days to submit his statement; however, the
statement was not submitted).

12.  On 13 December 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 21 December 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 2 years, 2 months and 19 days of active
service characterized as under honorable conditions (general).  He was
discharged in the grade of private first class/pay grade E-3.

14.  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.

15.  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.

16.  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 his general discharge should be upgraded to
an honorable discharge.

2.  The applicant was advised of the effects of a general discharge.  The
applicant was afforded the opportunity to consult with counsel and declined
to make a statement in his own behalf.  He was also referred to the ADAPCP,
but there are no documentations in file showing that he attended the
program.

3.  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.

4.  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.

5.  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.

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

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 21 December 1988; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on   20 December 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

___jtm___  ____wdp  ____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.




                                  ___________William D. Powers_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040011719                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050908                                |
|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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