RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 December 2004
      DOCKET NUMBER:  AR2004107104


      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. Michael J. Fowler             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Ms. Seema E. Salter               |     |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 discharge be upgraded from (general)
under honorable conditions to an honorable discharge.

2.  The applicant states, in effect, that he was treated unjustly prior to
his separation.  The applicant further states after he returned from thirty
days of military leave he issued two urinalysis tests within eighty hours
by his unit which resulted in him being positive for cocaine use for both
tests.  The applicant further states that in 1995 he filed for Post-
Traumatic Stress Disorder (PTSD).

3.  The applicant provides no documentation in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 1 March 1989.  The application submitted in this case was
received by the Army Board for Correction of Military Records (ABCMR) on 19
April 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 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 enlisted in the Regular Army on 23 August 1985 and
successfully completed basic training and advanced individual training.  He
was awarded military occupational specialty 31K (Combat Signaler).

4.  On 23 November 1988, the applicant underwent a mental evaluation by a
medical physician that determined that he could distinguish right from
wrong and that he possessed sufficient mental capacity to understand and
participate in administrative or judicial proceedings.

5.  On 28 November 1988, the applicant accepted nonjudicial punishment
(NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for
wrongful use of cocaine.

6.  A Standard Form 88 (Report of Medical History), dated 6 December 1988,
shows that the applicant was qualified for separation.

7.  A Standard Form 89 (Report Of Medical Examination), dated 6 December
1988, shows that the applicant was being separated and that his present
health was "good."

8.  On 10 February 1989, the applicant’s commander signed an elimination
packet on the applicant for separation under the provisions of Army
Regulation 635-200, chapter 14 for misconduct – patterns of misconduct.
The reason cited by the commander was the applicant’s two time abuse of
illegal drugs.  The applicant was advised of his rights and the commander
recommended the applicant receive a general discharge.

9.  On 10 February 1989, the applicant was advised by consulting counsel of
the basis for the contemplated separation action.  The applicant was
advised of the impact of the discharge action.  He waived appearance before
an administrative separation board contingent upon him receiving a
(general) under honorable conditions discharge and did not submit a
statement in his own behalf.

10.  On 22 February 1989, the appropriate authority approved the request
and directed the applicant receive a general discharge.

11.  On 1 March 1989, the applicant was discharged, with a general
discharge, in pay grade E-3, under the provisions of Army Regulation 635-
200, chapter 14, for misconduct.  He had completed 3 years, 8 months, and 9
days of creditable active service and had no lost time.

12.  The applicant applied to the Army Discharge Review Board (ADRB) to
upgrade his discharge.  On 14 April 2004, the ADRB reviewed and denied the
applicant's request for upgrade.  The ADRB determined that the applicant's
discharge was proper and equitable and that the discharge was properly
characterized as (general) under honorable conditions.

13.  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, convictions by civil authorities,
desertion or absence without leave.  Action will be taken to separate a
member for misconduct when it is clearly established that rehabilitation is
impracticable or is unlikely to succeed and an unfit medical condition is
not the direct or substantial contributing cause of his misconduct.  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.

14.  Army Regulation 635-200, paragraph 3-7, 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.

15.  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 (Army Regulation 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 ABCMR 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 date of application to the ABCMR is within three years of the
decision of the ADRB; therefore, the applicant has timely filed.

2.  The applicant contends that he was treated unjustly for being issued
two urinalysis tests within eighty hours.  In order to justify correction
of a military record the applicant must show, or it must otherwise
satisfactorily appear, that an injustice occurred.  The applicant has
failed to submit evidence that would satisfy this requirement.

3.  The applicant further contends that he filed for PTSD in 1995.  There
is no evidence and the applicant has not provided evidence that shows he
was treated or diagnosed with PTSD prior to his discharge or later.  There
is no basis for this argument.

4.  Evidence shows that the applicant was properly and equitably discharged
in accordance with the regulations in effect at the time.

5.  The applicant's records show that he received one Article 15 for
wrongful use of cocaine.  He acknowledged he tested positive for cocaine
twice.  Based on these facts, the applicant’s service clearly did not meet
the standards of
acceptable conduct and performance of duty for Army personnel which are
required for issuance of an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__FE ___  __PMS_ _  __SES __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




                                  ____Fred Eichorn______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004107104                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |21 December 2004                        |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1 March 1989                            |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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