RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:               NOVEMBER 9, 2004
      DOCKET NUMBER:        AR2004103617


      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. Mark D.Manning                |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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 narrative reason for separation be
changed.

2.  The applicant states that he was discharged based on an incident that
occurred 1 year prior to his separation.  He states that he was initially
supposed to be separated for medical reasons due to his being overweight
and that he requested separation after being given 18 months of extended
time.

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 9 February 1987.  The application submitted in
this case is dated 2 February 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.  On 16 August 1984, he enlisted in the Army for 4 years in the pay grade
of
E-1.  He successfully completed his training as an equipment records and
parts specialist.  He was advanced to the pay grade of E-2 on 16 February
1985.

4.  On 21 May 1985, the applicant’s commanding officer (CO) was notified by
a medical officer at the United States Army Health Clinic, that the
applicant had been examined and that he was found to have exceeded the
weight for the height table and the body fat standard.  His CO was informed
that he was fit for participation in a weight control/physical exercise
program and that his being overweight was not due to a medical condition.
In the notification, the medical officer stated that the applicant had been
advised that the goal of losing 6 pounds within 6 months was determined to
be a realistic goal and that since his weight at that time was 210 pounds,
his loss per month should be 4 pounds.



5.  On 27 June 1985, the CO reiterated to the applicant, in the form of an
indorsement, the findings of the medical officer.  He acknowledged receipt
of the indorsement indicating that he understood his responsibilities to
achieve the maximum allowable weight and to have his weight recorded
periodically or during unit training assemblies.

6.  On 13 August 1985, he was advanced to the pay grade E-3.

7.  The applicant was counseled on 9 January 1986 for failure to maintain
his room area up to standards.  He was told that his actions would not be
tolerated and would result in action being taken against him under the
Uniform Code of Military Justice (UCMJ).

8.  Nonjudicial punishment (NJP) was imposed against the applicant on
27 January 1986, for failure to go to his appointed place of duty.  His
punishment consisted of restriction and extra duty.

9.  He was counseled on 21 February 1986, for failure to make formation and
he was again informed that his actions would not be tolerated and would
result in action being taken against him under the UCMJ.

10.  He was advanced to the pay grade of E-4 on 1 March 1986.

11.  The records show that on 17 April 1986, a medical officer at the
United States Army Health Clinic again notified the applicant’s CO, that he
had been examined and that he was found to have exceeded the weight for
height table and the body fat standard.  In the notification, the medical
officer stated that the applicant had been advised that the goal of losing
10 pounds within 6 months was determined to be a realistic goal and that
since his weight at that time was 210 pounds, his loss per month should be
4 pounds.  The applicant acknowledged receipt of the overweight packet.

12.  On 2 May 1986, the applicant was counseled for being late for morning
formation.  During the counseling, he was informed that his actions would
not be tolerated and that he was being considered for action under the UCMJ
in this matter.

13.  On 13 May 1986, NJP was imposed against him for wrongfully using
marijuana and for failure to go to his appointed place of duty.  His
punishment consisted of a reduction in pay grade, a forfeiture of pay,
restriction and extra duty.

14.  On 21 May 1986, the applicant’s CO requested that a medical
reevaluation be conducted on the applicant based on his being a weight
control program failure.  The CO’s request was based on the applicant’s
possible separation under the provisions of 635-200, chapter 5.
Accordingly, he was reevaluated and the medical officer indicated that his
being overweight was not due to a medical condition.

15.  He had NJP imposed against him again on 1 August 1986, for failure to
obey a lawful order from his superior noncommissioned officer (NCO).  His
punishment consisted of a reduction in pay grade, a forfeiture of pay,
restriction and extra duty.

16.  On 11 August 1986, the applicant was counseled for failure to meet
inspection standards.  During the counseling, he was informed that while
living in the barracks, standards must be met daily and that the Soldier
must maintain basic issue items.  He was told that failure to maintain the
standards may result in the imposition of NJP.

17.  On 24 September 1986, he was counseled for failure to obey a lawful
order. At the time of the counseling, his senior NCO stated that he was
recommending that action be taken against him under the UCMJ.

18.  The applicant was counseled on 10 November and 17 November 1986 for
failure to shave for duty and for losing his meal card.  During both
counseling sessions, he was told to report for extra training that evening.

19.  On 6 January 1987, the applicant was notified that he was being
recommended for discharge under the provisions of Army Regulation 635-200,
chapter 14, for misconduct, based on abuse of illegal drugs.  He
acknowledged receipt of the notification on 8 January 1987.  After
consulting with counsel, he waived his right to have his case considered by
an administrative separation board.

20.  The appropriate authority approved the recommendation for discharge on
28 January 1987, directing that the applicant be furnished a general
discharge.  Accordingly, on 9 February 1987, the applicant was discharged,
under honorable conditions, under the provisions of Army Regulation 635-
200, chapter 14, for misconduct, based on drug abuse.  He had completed 2
years, 5 months and 24 days of total active service.

21.  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.

22.  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.

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, it does not
appear that the reason for his discharge was based on one incident.  The
evidence of record clearly shows that he had NJP imposed against him on
three separate occasions and he was counseled on seven separate occasions
regarding his acts of misconduct.  He was notified that he was being
separated based on his acts of misconduct, to include illegal drug use.
His Certificate of Release or Discharge was properly annotated to show the
narrative reason for his separation and there is no evidence in the
available record nor has the applicant submitted any evidence to show that
what the Army did in this case was incorrect.

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 9 February 1987; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 8 February 1990.  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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

mdm_____  lgh_____  lds _____  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.




                                  _____Mark D. Manning__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004103617                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041109                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19870209                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |CHAPTER 14/MISCONDUCT                   |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  626  |144.6000.0000/MISCONDUCT                |
|2.  660                 |144.6600.0000/DRUG ABUSE                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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