RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 August 2005
      DOCKET NUMBER:  AR20050000530


      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 E. Vick                 |     |Chairperson          |
|     |Mr. Ronald J. Weaver              |     |Member               |
|     |Mr. Robert Rogers                 |     |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 to an honorable
discharge.

2.  The applicant states, in effect, that he was misled with regard to his
entitlement to benefits and that he wanted to finish his enlistment but the
battalion commander would not allow it.

3.  The applicant did not provide any documentary evidence in support of
this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 6 December 1983, the date of his discharge from active duty.
The application submitted in this case is dated 29 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.  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.

3.  Records show that the applicant enlisted in the Regular Army on 13
January 1983 for a period of three years.  He completed One Station Unit
Training and was awarded the military occupational specialty 11H10 (Heavy
Anti-Armor Weapons Infantryman).

4.  On 21 October 1983, nonjudicial punishment was imposed against the
applicant for possession of marijuana.  His punishment consisted of
reduction to private/pay grade E-1, extra duty for 30 days and forfeiture
of $286.00 per month for two months.




5.  The applicant's records contain a DA Form 2496 (Disposition Form),
dated 26 October 1983, completed by the Commander of the Combat Support
Company, 2nd Battalion, 504th Airborne Infantry of the 82nd Airborne
Division.  This form shows that the applicant was enrolled in the Army
Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) on
20 October 1983 as a result of a positive urinalysis test and possession of
marijuana.

6.  This form further shows that the applicant admitted to continued use of
illegal drugs and that he was unwilling to participate in the
rehabilitation program.

7.  The commander stated that the applicant's illegal use of drugs made him
a poor candidate for continued service in the U.S. Army, that the
applicant's conduct was rated as being unsatisfactory, and that his
efficiency was marginal.

8.  The commander concluded that the applicant was a rehabilitation failure
and should be discharged from the Army in accordance with chapter 9 of Army
Regulation 635-200 (Personnel Separations).

9.  The applicant's records contain a copy of a Headquarters, XVIII
Airborne Corps and Fort Bragg [Fort Bragg, North Carolina] memorandum,
dated 27 October 1983, which states that the applicant will be processed
for separation under the provisions of chapter 9 of Army Regulation 635-
200.

10.  On 15 November 1983, the applicant was notified by his commander that
he was being recommended for separation under the provisions of chapter 9
of Army Regulation 635-200.

11.  The applicant's unit commander wrote that he based his recommendation
for separation on the applicant's use of marijuana and the applicant's
intent to continue using it.

12.  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 was counseled by appropriate counsel, that he did not
request treatment in a Veterans Administration medical center, and that he
did not provide statements on his own behalf.

13.  On 15 November 1983, the applicant's commander forwarded his
recommendation and his request for waiver of further rehabilitation of the
applicant to the Commander of the 2nd Battalion, 504th Infantry, 82nd
Airborne Division for approval.

14.  On 17 November 1983, the battalion commander forwarded the
recommendation for separation of the applicant to the Commander of the 1st
Brigade, 82nd Airborne Division for approval.

15.  On 17 November 1983, the brigade commander directed that the applicant
be discharged from the United States Army under the provisions of chapter 9
of Army Regulation 635-200, for drug abuse rehabilitation failure.  The
commander further directed that the applicant be furnished a General
Discharge Certificate.

16.  On 6 December 1983, the applicant was separated from active duty under
the provisions of chapter 9 of Army Regulation 635-200 for drug abuse
rehabilitation failure and furnished a General Discharge Certificate.

17.  On 2 October 1987, the Army Discharge Review Board (ADRB) denied the
applicant's request for upgrade of his general discharge to an honorable
discharge.  The ADRB unanimously determined that the general discharge was
proper.

18.  The applicant was notified of the ADRB decision by a letter dated 2
October 1987.

19.  Army Regulation 635-200 (Personnel Separations) sets forth the basic
authority for the separation of enlisted personnel.   Chapter 9 contains
the authority and outlines the procedures for discharging individuals
because of alcohol or other drug abuse.  A member who has been referred to
Army Drug and Alcohol Prevention and Control Program (ADAPCP) for
alcohol/drug abuse may be separated because of inability or refusal to
participate in, cooperate in, or successfully complete such a program if
there is a lack of potential for continued Army service and rehabilitation
efforts are no longer practical.  At the time of the applicant’s separation
an honorable or general discharge was authorized.  However, an honorable
discharge was required if restricted use information was used.

20.  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.  Whenever there is doubt, it is to be
resolved in favor of the individual.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded to an
honorable discharge because he was misled about the benefits that he was
entitled.

2.  Evidence shows that the applicant was properly and equitably discharged
in accordance with the regulations in effect at the time and that the type
of discharge directed and the reasons for separation were appropriate
considering all of the evidence of record.

3.  Further, the applicant acknowledged in his separation processing
proceedings that he consulted with counsel, was advised of the effects of
the separation, and was advised of the rights available to him.  Therefore,
the applicant's contention that he was misled is contradicted by the facts
in this case.

4.  The applicant's record of service shows that nonjudicial punishment was
imposed against him for possession of marijuana and that he was referred to
Army Drug and Alcohol Prevention and Control Program where he was deemed a
drug abuse rehabilitation failure.  His quality of service did not meet the
standards of acceptable conduct and performance of duty for Army personnel.
 Therefore, he is not entitled to an honorable discharge.

5.  Furthermore, the ABCMR does not grant requests for upgrade of
discharges solely for the purpose of making applicants eligible for
employment or veteran benefits.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 2 October 1987.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 1 October 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 file in this case.








BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_RJW___  _RR__ _  _JEV_____  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.




                                      _James E. Vick_
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000530                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050818                                |
|TYPE OF DISCHARGE       |GD,                                     |
|DATE OF DISCHARGE       |1983/1/13                               |
|DISCHARGE AUTHORITY     |AR 635-200 Chap 6. . . . .              |
|DISCHARGE REASON        |Drug rehabilitation failure             |
|BOARD DECISION          |Deny                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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