Department of the Army
                  BOARD FOR CORRECTION OF MILITARY RECORDS
                      1901 SOUTH BELL STREET 2ND FLOOR
                          ARLINGTON, VA  22202-4508




                            RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:              JULY 1, 2004
      DOCKET NUMBER:      AR2004100276


      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:

|     |Ms. Lana McGlynn                  |     |Chairperson          |
|     |Ms. Linda Simmons                 |     |Member               |
|     |Mr. John Meixell                  |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 discharge.

2.  The applicant states what he was accused of in the past resulted in a
discharge that hinders his ability to support his family, who by no way are
involved with the period in question.  He states that the type of discharge
that he received stops him from working in or progressing further in law
enforcement, which he has the ability to perform if only he would be
allowed.  He states that his Certificate of Release or Discharge (DD Form
214) shows that he was under investigation for drugs and that it should not
have happened.  He concludes by stating that he was unaware that the type
of discharge that he received could cost him his job and/or advancement
opportunities.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice, which
occurred on 26 April 1996.  The application submitted in this case is dated
15 October 2003.

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.  On 3 June 1993, he enlisted in the Army for 4 years in the pay grade of
E-1.  He successfully completed his training as an armor crewman.  He was
promoted to the pay grade of E-2 on 1 December 1993 and to the pay grade of
E-3 on 1 April 1995.

4.  On or about 14 April 1995, the applicant underwent a urinalysis, which
tested positive for the presence of methylenedioxymethamphetamine (MDMA)
and methylenedioxyamphetamine (MDA).  An investigation was conducted by the
Criminal Investigation Division and during the investigation the applicant
admitted to the possession and use of ecstasy.  A Record of Proceedings
Under Article 15 was prepared by his commanding officer on 26 June 1995;
for wrongfully using methylenedioxymethamphetamine; however, the record is
unclear as to the date that the Article 15 was referred to the applicant.



5.  On 5 August 1995, the applicant was counseled for being absent without
leave (AWOL) for 26 days; for being missing from formation on 10 July 1995;
and for going AWOL on 11 July 1995, when he knew that he had nonjudicial
punishment (NJP) pending against him for the drug related incident.  He was
informed that he had made his situation worst and that he had brought
discredit to himself, his family, his platoon, his unit, and the United
States Army.  He was informed that he was being recommended for trial by
court-martial.

6.  The applicant went AWOL again on 28 August 1995 and he remained absent
until he was apprehended by civil authorities and returned to military
control on 22 January 1996.

7.  On 26 January 1996, charges were preferred against the applicant for
being AWOL.  He was notified of the pending charges and on 1 February 1996,
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.

8.  The appropriate authority approved the request for discharge on 1 April
1996. Accordingly, on 26 April 1996, 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 2 years, 4 months and 29 days of total active
service.

9.  During the processing of this request, it was noted that the applicant
had never filed an appeal with the Army Discharge Review Board (ADRB) for
an upgrade of his discharge.  The ADRB has a 15-year statute of limitations
and the processing of his case by this Board does not preclude him from
applying to the ADRB at a later date.

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 contentions have been noted.  However, a review of his
records fails to substantiate his contention that his DD Form 214 reflects
that he was under investigation for drugs at the time of his discharge.
His records show that at the time that he submitted his request for
discharge, he had charges pending against him for being AWOL.

4.  His request for a chapter 10 discharge, even after appropriate and
proper consultation with a military lawyer, tends to show he wished to
avoid the
court-martial and the punitive discharge that he might have received.

5.  The applicant chose to request an administrative discharge rather than
risk the consequences of a court-martial.  Although he may now believe that
he made the wrong choice, he should not be allowed to change his mind at
this late date.

6.  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.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 April 1996; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 25 April 1999.  However, 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 RELIEF

________  ________  ________  GRANT FORMAL HEARING

lem_____  lds_____  jm______  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.




            ___Lana E. McGlynn___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100276                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040701                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19960426                                |
|DISCHARGE AUTHORITY     |AR 635-200/CH 10                        |
|DISCHARGE REASON        |689/REQ DISCHARGE FTGS                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  708  |144.7100.0000/CONDUCT TRIABLE BY CM     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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