RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           19 October 2004
      DOCKET NUMBER:   AR2004102609


      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             |
|     |Mrs. Victoria A. Donaldson        |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James C. Hise                 |     |Chairperson          |
|     |Mr. Bernard P. Ingold             |     |Member               |
|     |Ms. Yolanda Maldonado             |     |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 narrative reason for
separation be changed on his DD Form 214 (Armed Forces of the United States
Report of Transfer or Discharge) from "Misconduct" to a positive title or
phrase in order to gain employment.

2.  The applicant states, in effect, that he is unable to gain employment
because of the narrative reason for separation.

3.  The applicant provides a copy of his DD Form 214 and a copy of the 9
March 2000 Army Discharge Review Board results.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an error which occurred on
23 February 1996, the date of his separation.  The application submitted in
this case is dated 7 January 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.  Records show that the applicant served in the Army National Guard for
the period 14 April 1983 through 18 October 1984.  The applicant enlisted
in the Regular Army on 19 October 1984 and served until his separation on
23 February 1996.  Records show that the highest grade that the applicant
held was staff sergeant/pay grade E-6.

4.  On 10 March 1987, nonjudical punishment was imposed against the
applicant for being absent without leave for the period 24 February 1987
through 3 March 1987.  His punishment consisted of forfeiture of $250.00
for 2 months, 30 days extra duty, restriction to the battalion area for 30
days and reduction in pay grade to private/pay grade E-2.

5.  The applicant's records contain a DA Form 4856 (General Counseling
Form), dated 22 November 1995, which shows that the applicant was counseled
by a second lieutenant in the quartermaster branch for "positive results on
an urinalysis and a previous company grade Article 15."  This form also
shows that the applicant was notified of the administrative separation
proceedings under the provisions of Army Regulation 635-200 (Active Duty
Enlisted Administrative Separations).  The applicant authenticated this
form by his signature on 22 November 1995.

6.  On 27 November 1995, nonjudical punishment was imposed against the
applicant for wrongful use of marijuana, a controlled substance during the
period 12 September 1995 through 12 October 1995.  His punishment consisted
of forfeiture of $300.00 for 2 months, 45 days extra duty, and reduction in
pay grade to sergeant/pay grade E-5.

7.  On 1 February 1996, the applicant was notified by his commander that he
was being recommended for separation under the provisions of paragraph 14-
12c (Commission of a Serious Offense) of Army Regulation 635-200.

8.  The applicant's unit commander cited the reasons for his recommendation
were that the applicant had received a positive urinalysis test for
marijuana.

9.  On 1 February 1996, the applicant acknowledged that he was advised of
the basis for his separation under the provisions of Army Regulation 635-
200.  The applicant indicated that he waived his right to consulting
counsel and that he waived his right to have his case heard by an
administrative separation board.  The applicant also indicated that he did
not provide statements on his own behalf.

10.  The applicant also indicated that he was aware that as a result of the
issuance of a general discharge under honorable conditions that he may be
ineligible for many or all benefits as a veteran under both Federal and
State laws, and that he may expect to encounter substantial prejudice in
civilian life based on this undesirable discharge.

11.  On 1 February 1996, the applicant's commander forwarded his
recommendation for separation of the applicant to the battalion commander
for approval.

12.  On 1 February 1996, the battalion commander concurred with the
recommendation and forwarded the recommendation for separation of the
applicant to the brigade commander for approval.


13.  On 1 February 1996, the brigade commander concurred with the
recommendation and forwarded the recommendation through the Office of the
Staff Adjutant General of Fort Carson to the Commander of Fort Carson for
review and approval.

14.  A Judge Advocate General Corps officer in the position of trial
counsel recommended approval of the separation action and the issuance of a
general under honorable conditions discharge.

15.  On 5 February 1996, the Commander of Fort Carson approved the
separation and issuance of a general under honorable conditions discharge.
The commander further stated that the applicant would be transferred to the
Individual Ready Reserve.

16.  Headquarters, Fort Carson Orders Number 051-0012, dated 20 February
1996, show that the applicant was discharged from the Regular Army
effective 23 February 1996.

17.  On 23 February 1996, the applicant was separated from active duty
under the provisions of paragraph 14-12c of Army Regulation 635-200, for
patterns of misconduct and furnished a General Discharge Certificate.

18.  On 22 May 1999, the applicant applied to the Army Discharge Review
Board for upgrade of his discharge.

19.  On 9 March 2000, the Army Discharge Review Board considered the
applicant's request for a discharge upgrade.  The Army Discharge Review
Board determined that the characterization of his discharge was inequitable
and that the characterization should be changed to honorable.  The Army
Discharge Review Board also determined that the reason for separation was
correct as currently constituted and voted unanimously not to change the
reason for separation.

20.  The applicant was notified of the Army Discharge Review Board's
decision by a letter dated 14 March 2000.

21.  Records show that the applicant's original DD Form 214 issued at the
time of his separation has been amended to show his character of service
was honorable.

22.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for separating members for misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense, and convictions by civil authorities.
Action will be taken to separate a member for misconduct when it is clearly
established that rehabilitation is impracticable or is unlikely to succeed.
 A discharge under other than honorable conditions is normally appropriate
for a soldier discharged under this chapter.  However, the separation
authority may direct a general discharge if such is merited by the
soldier’s overall record.  Only a general court-martial convening authority
may approve an honorable discharge or delegate approval authority for an
honorable discharge under this provision of regulation.

23.  Army Regulation 635-5 establishes the standardized policy for
preparing and distributing the DD Form 214.  In pertinent part, it directs
that the regulatory authority authorizing the separation will be entered in
item number 25 of the DD Form 214.  Item number 28 will contain the
narrative reason for separation, as shown in Army Regulation 635-5-1 based
on the regulatory authority.

24.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (AR 15-185, paragraph 2-8),
effectively shortens that filing period, has determined that the 3 year
limit on filing to the ABCMR should commence on the date of final action by
the ADRB.  In complying with this decision, the Board has adopted the
broader policy of calculating the 3-year time limit from the date of
exhaustion in any case where a lower level administrative remedy is
utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that the narrative reason for separation on his
DD Form 214 be changed to a positive title or phrase in order to gain
employment.

2.  The applicant's records show that he was discharged for misconduct
based on the results of an urinalysis test that showed that he tested
positive for marijuana use.

3.  The Army Discharge Review Board voted unanimously to deny the request
to change the narrative reason for separation.

4.  The ABCMR does not grant relief solely for the purpose of seeking
benefits including employment.

5.  There is no evidence and that applicant has not provided evidence which
supports his request to change his narrative reason for separation.
Therefore, there is no basis to change the narrative reason on his DD Form
214.  Based on the foregoing, the DD Form 214 is correct as currently
constituted.

6.  Records show the applicant exhausted the administrative remedies in
this case when his case was last reviewed by the Army Discharge Review
Board on 9 March 2000.  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
March 2003.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JCH __  __BPI ___  __YM___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.





                 _Mr. James C. Hise__
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004102609                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20041019                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19960223                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]